Combined Case and Articles File

ADAMS v.
STATE
Cite as 707 S.E.2d 359 (Ga. 2011)
tiveness claim, and the claim is indeed raised

for the first time on appeal, [the court] remand[s] the case to the trial court for an
evidentiary hearing on the issue. Setser v.
State, 233 Ga.App. 822, 824(2), 505 S.E.2d
798 (1998); see also Mangrum v. State, 285
Ga. 676, 683, 681 S.E.2d 130 (2009). However, remand is not necessary when it appears
as a matter of law that the appellant cannot
satisfy the two-prong test to establish ineffectiveness of counsel. (Citation and punctuation omitted.) Setser, supra, 233 Ga.App. at
824825, 505 S.E.2d 798.
[13, 14] In order to succeed on a claim of
ineffective assistance, Evans must prove both
that his trial counsels performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an
appellant fails to meet his burden of proving
either prong of the Strickland test, the reviewing court does not have to examine the
other prong. Id. at 697(IV), 104 S.Ct. 2052;
Fuller v. State, 277 Ga. 505(3), 591 S.E.2d
782 (2004).
As explained above, McCalls testimony
was admissible under the necessity exception
to hearsay as a prior difficulty, showing Evans motive, intent, and bent of mind. Trial
counsel was not deficient for failing to raise a
meritless objection.
Judgment affirmed.
All the Justices concur.
,
288 Ga. 695
ADAMS
v.
The STATE.
No. S10A1563.
Supreme Court of Georgia.
Feb. 7, 2011.
Reconsideration Denied March 7, 2011.
Background: Defendant was convicted in

the Superior Court, Dawson County, Full-
Ga.
359
er, J., of child molestation and aggravated

child molestation, and he appealed.
Holdings: After transfer from the Court
of Appeals, the Supreme Court, Carley,
P.J., held that:
(1) defendant failed to raise affirmative
defense that he had been under age 13
at time of offenses;
(2) defendant was not prejudiced by
states failure to prove that offenses
occurred within range of dates alleged
in indictment;
(3) trial court was not divested of jurisdiction to hear case under statute allowing transfer of cases involving children
between the ages of 13 and 17; and
(4) statute governing defendants sentence
was not unconstitutionally cruel and
unusual.
Affirmed.
Hunstein, C.J., filed a specially concurring
opinion.
1. Criminal Law O569

Defendant in prosecution for child molestation failed to present evidence as to his
age at the time he committed the alleged
offenses, as required to raise affirmative defense that he had been under the age of 13 at
the time of the crimes and thus was statutorily prohibited from being found guilty of
alleged offenses. Wests Ga.Code Ann.
1631.
2. Infants O65, 66
Statute providing that a person shall not
be found guilty of a crime unless he had
attained the age of 13 years old at the time of
the crime does not provide that a person
under 13 years of age is incapable of performing an act which is designated a crime,
and does not provide a constitutional nor an
unwaivable proscription on the prosecution of
persons under 13 years old; the statute simply raises a defense for children under 13
360
Ga.
707 SOUTH EASTERN REPORTER, 2d SERIES
because of the social desirability of protecting those no more than 12 years of age from
the consequences of criminal guilt. Wests
Ga.Code Ann. 1631.
3. Criminal Law O31, 330
Statute providing that a person shall not
be found guilty of a crime unless he had
attained the age of 13 years old at the time of
the crime sets forth an affirmative defense,
because such a defense admits the doing of
the act charged, but seeks to justify, excuse,
or mitigate it. Wests Ga.Code Ann. 163
1.
4. Criminal Law O330, 561(1)
The responsibility of producing evidence
of an affirmative defense and the burden of
persuasion by proof beyond a reasonable
doubt are two distinct and separate concepts;
the first is placed squarely on the defendant
unless the states evidence raised the issue.
5. Criminal Law O958(6)
Post-verdict motion filed by defendant in
prosecution for child molestation failed to
include any evidence of defendants date of
birth, and failed to explain why defendant
had failed at trial to raise issue of his age at
time of committing the alleged crimes, and
thus the motion was insufficient to show, as
allegedly newly discovered evidence warranting a new trial, that defendant was under age
13 at time of alleged offenses, so as to statutorily prohibit defendant from being found
guilty of alleged offenses. Wests Ga.Code
Ann. 1631.
6. Criminal Law O753.2(3.1)
Defendant in prosecution for child molestation was not prejudiced by states failure
to prove that the offenses occurred within
the range of dates alleged in the indictment,
and thus defendant was not entitled to a
directed verdict of not guilty; defendant offered no alibi evidence, did not express any
need for additional time to rebut any evidence presented by state, and dates proved
at trial were prior to return of the indictment
and within applicable seven-year limitation
period.
7. Indictment and Information O176

Where the state alleges a certain range
of dates in an indictment and does not specifically allege that those dates are material,
the state is not restricted at trial to proving
that the crimes occurred within that range of
dates.
If there is a variation between the date
of an offense alleged in an indictment and the
date proved at trial, the variance does not
entitle a defendant to a new trial unless it
prejudiced the defense.
9. Infants O68.5
Indictment alleged and evidence at trial
authorized a finding that defendant, a person
between the ages of 13 and 17, had committed aggravated child molestation on some
date after enactment of statute providing a
mandatory life sentence for aggravated child
molestation, and thus superior court was not
divested of jurisdiction to hear prosecution of
defendant pursuant to statute allowing superior court to transfer any case involving a
child 13 to 17 years of age alleged to have
committed any offense not punishable by imprisonment for life without possibility of parole.
Wests Ga.Code Ann. 1511
28(b)(2)(B), 1664(d)(1).
10. Infants O20
Sentencing and Punishment O1607
Statute governing sentence of defendant, a person between the ages of 13 and
17, for aggravated child molestation, mandating 25 years in prison followed by life on
probation with no possibility of probation or
parole for the minimum prison time of 25
years, did not raise a threshold inference of
gross disproportionality, and thus was not
unconstitutionally cruel and unusual as applied to defendant; evidence showed that defendant committed numerous acts of molestation against a very young child victim.
U.S.C.A. Const.Amend. 8; Wests Ga.Code
Ann. 1664(d)(1), 17106.1(b).
11. Sentencing and Punishment O1482
Where no categorical Eighth Amendment restriction applies, in order to determine whether a sentence for a term of years
is grossly disproportionate for a particular
ADAMS v. STATE
Cite as 707 S.E.2d 359 (Ga. 2011)
defendants crime, a court must begin by

comparing the gravity of the offense and the
severity of the sentence; in the rare case in
which this threshold comparison leads to an
inference of gross disproportionality the
court should then compare the defendants
sentence with the sentences received by other offenders in the same jurisdiction and with
the sentences imposed for the same crime in
other jurisdictions. U.S.C.A. Const.Amend.
8.
A sentence which is not otherwise cruel
and unusual does not become so simply because it is mandatory. U.S.C.A. Const.
Amend. 8.
13. Constitutional Law O2507(3)
Legislative enactments constitute the
clearest and most objective evidence of how
contemporary society views a particular punishment, for purposes of determining whether the punishment is unconstitutionally cruel
and unusual; as a result, the issue of punishment is generally one for the legislative
branch, and legislative discretion is deferred
to unless the sentence imposed shocks the
conscience. U.S.C.A. Const.Amend. 8.
14. Infants O20
In order to admit child hearsay evidence, an express finding that sufficient indicia of reliability support admission of the
evidence is not necessary where, after both
parties have rested, the record contains evidence which would support such a finding.
Wests Ga.Code Ann. 24316.
Defendant at trial on charges of child
molestation failed to object, on grounds of
alleged violation of his rights to confrontation, to admission of videotaped statement of
child victim, and thus defendant waived his
objection on appeal. U.S.C.A. Const.Amend.
6.
Rafe Banks, III, Daisy Drury Weeks,

Cumming, for appellant.
Ga.
361
Lee Darragh, District Attorney, Theodore

G. Cassert, Assistant District Attorney, for
appellee.
CARLEY, Presiding Justice.
On June 12, 2008, Mitchell Lee Adams was
indicted for child molestation and aggravated
child molestation occurring on and between
May 1, 2007 and March 10, 2008, the State
being unable to narrow the range of dates or
charge a specific date as the crime occurred
during the period of time charged and the
victim is a young child unable to state a
specific dateTTTT Prior to trial, the trial
court denied a challenge by Adams to the
constitutionality of the mandatory minimum
sentence for aggravated child molestation
provided in the 2006 amendment to OCGA
1664(d)(1) as applied to him. During a
jury trial, Adams moved for a directed verdict, arguing that the State failed to prove
that the crimes occurred during the period of
time set forth in the indictment. The trial
court ruled that the dates alleged in the
indictment were not essential averments, and
subsequently instructed the jury that any of
the charged offenses could be proven as of
any time within the applicable seven-year
statute of limitations.
Adams was found guilty of both offenses
with which he was charged. Several months
later, the trial court entered judgments of
conviction on the guilty verdicts and sentenced Adams to life imprisonment for aggravated child molestation, with 25 years to
be served and the remainder of the life sentence on probation, and to a 20year term for
child molestation, with five years to be
served and the remainder on probation.
Adams appealed to the Court of Appeals.
Because the constitutionality of the current
version of OCGA 1664(d)(1) is raised on
appeal and has not yet been considered by
this Court, the Court of Appeals transferred
the case to this Court pursuant to our exclusive jurisdiction over all cases in which the
constitutionality of a law TTT has been drawn
in questionTTTT See Ga. Const. of 1983,
Art. VI, Sec. VI, Par. II(1).
[1] 1. On the day that Adams was sentenced, he filed a motion to dismiss the indictment or, in the alternative, for directed
362
Ga.
verdict, which the trial court orally denied.

In that motion, he asserted for the first time
that, as a result of the trial courts ruling
that the alleged dates were not essential
averments, the indictment permitted prosecution for offenses occurring prior to his
thirteenth birthday on August 4, 2005, and
that the State failed to prove that the crimes
did not occur before that date. Adams contends on appeal that the time period for
which he was convicted includes a period in
which, because of his age, he could not be
found criminally responsible.
authority that OCGA 1631 provides immunity from criminal prosecution. To the
contrary, that statute simply raises a defense for (children under 13) because of the
social desirability of protecting those no
more than 12 years of age from the consequences of criminal guilt. [Cit.] Luke v.
State, 222 Ga.App. 203, 205(1)(b), 474 S.E.2d
49 (1996), overruled on other grounds, Brewer v. State, 271 Ga. 605, 607, 523 S.E.2d 18
(1999). See also K.M.S. v. State of Ga.,
supra (taking this language from the Committee Notes).
A person shall not be considered or found

guilty of a crime unless he has attained the
age of 13 years at the time of the act, omission, or negligence constituting the crime.
OCGA 1631. Under prior law, a person
under the age of ten years was incapable of
committing any criminal offense. Ford v.
State, 100 Ga. 63(1), 25 S.E. 845 (1896).
Such a child was conclusively presumed not
to be possessed of sufficient capacity to commit crime. [Cit.] Curry v. State, 87 Ga.
App. 451, 452(1), 74 S.E.2d 249 (1953). However, with the enactment of OCGA 1631
in 1968, the General Assembly eliminate[d]
the conclusive presumption of incapacity to
commit crime below the age of 10 years TTT
and lower[ed] the rebuttable presumption of
capacity to commit crime from 14 years to 13
years. Committee Notes to 26701 of the
1968 Criminal Code.
[3, 4] Indeed, OCGA 1631 sets forth

an affirmative defense, because such a defense admits the doing of the act charged,
but seeks to justify, excuse, or mitigate it.
Chandle v. State, 230 Ga. 574, 576(3), 198
S.E.2d 289 (1973); Agnors Ga. Evidence
17:7, fn. 9 (4th ed.). The definition of
affirmative defenses cannot be limited to
those which preclude criminal intent, by relying on authority which deals only with those
affirmative defenses which are specifically
identified as such and listed in OCGA 16
320 through 16328. Hicks v. State, 287
Ga. 260, 261262(2), 695 S.E.2d 195 (2010);
Brower v. State, 298 Ga.App. 699, 702(1), 680
S.E.2d 859 (2009) (quoted in Hicks ). Other
defenses, including age and the statute of
limitations, do not preclude criminal intent,
are listed in other statutes and may be
considered affirmative defenses as well.
[Cits.] Agnors, supra. See also Moss v.
State, 220 Ga.App. 150, 469 S.E.2d 325 (1996)
(limitations); Gregory C. Lisby, Resolving
the Hazelwood Conundrum: The First
Amendment Rights of College Students in
Kincaid v. Gibson and Beyond, 7 Comm. L.
& Poly 129, 131, fn. 13 (2002) (Infancy TTT
has long been a widely accepted affirmative
defense in TTT criminal law. [Cits.]). With
respect to any affirmative defense, unless
the states evidence raises the issue invoking
the alleged defense, the defendant must
present evidence thereon to raise the issue.
OCGA 1613(1).
The responsibility of producing evidence
of an affirmative defense and the burden of
persuasion by proof beyond a reasonable
doubt are two distinct and separate concepts. The first is placed squarely on the
[2] OCGA 1631 does not provide

that a person under 13 years of age is incapable of performing an act which is designated
a crime under the laws of GeorgiaTTTT (Emphasis in original.) K.M.S. v. State of Ga.,
129 Ga.App. 683, 685, 200 S.E.2d 916 (1973)
(citing the Committee Notes). It provides
neither a constitutional nor an unwaivable
proscription on the prosecution of persons
under 13 years old. Compare Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005) (relied upon by the special
concurrence, but providing a constitutional
and categorical proscription on the execution
of minors). OCGA 1631 should not be
confused with OCGA 51116, which this
Court has construed to provide immunity
from a tort action. Barrett v. Carter, 248 Ga.
389(1), 283 S.E.2d 609 (1981). There is no
ADAMS v. STATE
Cite as 707 S.E.2d 359 (Ga. 2011)
defendant unless the states evidence

raised the issue. (Cits.) [Cits.]
Cheesman v. State, 230 Ga.App. 525, 528(6),
497 S.E.2d 40 (1998). Thus, contrary to the
special concurrence, even if pre-trial documents which were never admitted into evidence refer to Adams date of birth, some
evidence of his age at the time of the crimes
nevertheless had to be presented at the trial
both to raise the issue in OCGA 1631
and to supply proof regarding that affirmative defense. However, [t]here was no evidence at the trial showing the age of the
accusedTTTT Broadnax v. State, 100 Ga. 62,
25 S.E. 844 (1896). Adams appellate brief
cites pre-trial record references to his date of
birth, but not any testimony or other evidence thereof in the transcript, and our own
review has located no such evidence. Therefore, Adams has not shown that either he or
the State raised the issue as to [his age at
the time] of the crimes. Cheesman v. State,
supra at 529(6), 497 S.E.2d 40.
[5] Adams could perhaps have moved for
a new trial based upon newly discovered
evidence. See Ford v. State, supra at 64, 25
S.E. 845; Broadnax v. State, supra. But see
Clemmons v. State, 66 Ga.App. 16, 1820(3),
16 S.E.2d 883 (1941) (motion for new trial not
sufficient to raise question of age because
former statute provided only a rebuttable
presumption that the 13yearold defendant
was incapable of committing a crime). However, the requirements of such a motion were
not met by the only post-verdict motion
which Adams did file. That motion did not
include any evidence of Adams date of birth
or account for its absence, and the record
shows that, prior to trial, Adams and his
attorney already believed that Adams date
of birth was August 4, 1992. See Hester v.
State, 282 Ga. 239, 241242(3), 647 S.E.2d 60
(2007); Timberlake v. State, 246 Ga. 488,
491(1), 271 S.E.2d 792 (1980); Broadnax v.
State, supra; Hester v. State, 219 Ga.App.
256, 257(1), 465 S.E.2d 288 (1995). Compare
Ford v. State, supra (affidavits presented
newly discovered evidence that defendant
was under ten years old and therefore incapable of committing any criminal offense under former statute).
Ga.
363
Neither an allegation nor proof of Adams

age was necessary to show his capacity for
committing the crimes charged. Clardy v.
State, 87 Ga.App. 633, 638(2), 75 S.E.2d 208
(1953). Construed most strongly in support
of the verdicts, the evidence was sufficient to
enable a rational trier of fact to find beyond
a reasonable doubt that Adams was guilty of
the crimes of child molestation and aggravated child molestation as charged in the indictment.
[6] 2. Adams further contends that the
trial court erred in denying the motion for
directed verdict which defense counsel made
during trial on the ground that the State
failed to prove that the offenses occurred
within the dates alleged in the indictment.
[7, 8] Where, as here, the State alleges a
certain range of dates in an indictment and
does not specifically allege that those dates
are material, the State is not restricted at
trial to proving that the crimes occurred
within that range of dates. State v. Layman,
279 Ga. 340, 341, 613 S.E.2d 639 (2005).
And, if there is a variation between the date
alleged and the date proved at trial, the
variance does not entitle a defendant to a
new trial unless it prejudiced the defense.
[Cits.] State v. Layman, supra. Adams
offered no alibi evidence, nor did he at
any time request a continuance on the
ground of surprise, nor did he otherwise
express a need for additional time to rebut
any evidence presented by the state. Consequently, it does not appear that the failure to allege the specific date of the offense in the indictment materially affected
his ability to present a defenseTTTT [Cit.]
Hutton v. State, 192 Ga.App. 239, 241(4), 384
S.E.2d 446 (1989).
The victim was unable to give specific
dates, but approximate dates can be determined based on the evidence the state did
present. The dates proved at trial were
prior to the return of the indictment and
were within the applicable seven-year statute of limitation period. Accordingly, the
evidence was sufficient to support the allegations of the indictment. [Cit.] The trial
court did not err in denying [Adams] motion for a directed verdict of acquittal
364
Ga.
based on the states alleged failure to

prove when the offenses were committed.
Wilt v. State, 265 Ga.App. 158, 161(2), 592
S.E.2d 925 (2004).
[9] 3. Prior to trial, Adams filed a motion to transfer the case to juvenile court
pursuant to OCGA 151128(b)(2)(B). In
pertinent part, that statutory subsection provides the following:
After indictment, the superior court may
after investigation and for extraordinary
cause transfer any case involving a child 13
to 17 years of age alleged to have committed any offense enumerated in subparagraph (A) of this paragraph which is not
punishable by loss of life, imprisonment for
life without possibility of parole, or confinement for life in a penal institution.
Although aggravated child molestation is an
offense enumerated in subparagraph (A), the
applicable sentencing statute was amended,
effective July 1, 2006, so as to provide for
mandatory punishment by imprisonment for
life or by a split sentence that is a term of
imprisonment for not less than 25 years and
not exceeding life imprisonment, followed by
probation for lifeTTTT OCGA 166
4(d)(1). On this basis, the trial court denied
the motion to transfer, finding that OCGA
151128(b)(2)(B) is inapplicable and that
the court was neither authorized nor obligated to conduct an investigation to determine
whether there is extraordinary cause.
Adams enumerates this ruling as error on
appeal, arguing that, because of the sevenyear statute of limitations and the trial
courts rulings and instructions, the offense
of aggravated child molestation could have
occurred prior to July 1, 2006, when that
offense was not yet punishable by life imprisonment and instead was to be punished by
imprisonment for not less than ten nor more
than 30 years. Ga. L.1997, pp. 1578, 1579,
1 (former OCGA 1664(d)(1)). Indeed,
aggravated child molestation clearly was a
transferable offense under OCGA 1511
28(b)(2)(B) prior to the 2006 amendment of
OCGA 1664(d)(1). State v. Ware, 258
Ga.App. 564, 565, 574 S.E.2d 632 (2002).
However, we have held that
the superior court is not divested of jurisdiction merely because some, but not all,
evidence of criminal acts is beyond the

scope of the superior courts jurisdiction,
so long as that evidence stems from the
same criminal transaction which vests the
superior court with jurisdiction. [Cit.]
Reynolds v. State, 266 Ga. 235, 237(2), 466
S.E.2d 218 (1996). See also Seabolt v. State,
279 Ga. 518, 519(1), 616 S.E.2d 448 (2005).
Although the evidence in this case does not
show the precise age of the victim, it is clear
that she was very young. In a forensic
interview in March of 2008, she stated that
she was four, remembered the molestation in
some detail, and stated that the molestation
occurred in her fathers house. Her parents
divorce was not final until May 2007. Because the indictment alleged and the evidence at trial authorized a finding that
Adams committed aggravated child molestation on some date after July 1, 2006, we hold
that the trial court could not be divested of
jurisdiction pursuant to OCGA 1511
28(b)(2)(B). See McGruder v. State, 279 Ga.
App. 851, 852(1), 632 S.E.2d 730 (2006).
Therefore, the trial court correctly denied
the motion to transfer the case to juvenile
court.
[10] 4. Adams contends that the sentence provided in the amendment to OCGA
1664(d)(1) constitutes cruel and unusual
punishment as applied to him. As a result of
OCGA 17106.1(b), that sentence is 25
years, followed by life on probation, with no
possibility of probation or parole for the minimum prison time of 25 years. [Cits.]
Humphrey v. Wilson, 282 Ga. 520, 529(3)(c),
652 S.E.2d 501 (2007).
Both parties address precedent involving
the punishment of a juvenile by life imprisonment without parole. During the pendency
of this appeal, the Supreme Court of the
United States held that the Eighth Amendment prohibits the imposition of a life without parole sentence on a juvenile offender
who did not commit homicide. Graham v.
Florida, U.S. , (III)(D), 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010). The
Supreme Court emphasized that [t]he
Eighth Amendment does not foreclose the
possibility that persons convicted of nonhomicide crimes committed before adulthood will
ADAMS v. STATE
Cite as 707 S.E.2d 359 (Ga. 2011)
remain behind bars for life. Graham v.

Florida, supra at (III)(B), 130 S.Ct.
2011. Instead, that amendment requires
that the juvenile be given at least a realistic
opportunity to obtain release before the end
of his life. Graham v. Florida, supra at
(III)(B), (III)(D), 130 S.Ct. 2011. It
forbid[s] States from making the judgment
at the outset that those offenders never will
be fit to reenter society. Graham v. Florida, supra at (III)(B), 130 S.Ct. 2011.
Clearly, [n]othing in the Courts opinion affects the imposition of a sentence to a term
of years without the possibility of parole.
Graham v. Florida, supra at , 130 S.Ct.
2011 (Alito, J., dissenting). Outside the context of the death penalty, of extreme cases
such as life imprisonment as punishment for
overtime parking, and now of life without
parole for a juvenile convicted of non-homicide crimes, successful challenges to the proportionality of legislatively mandated terms
of imprisonment should be exceedingly
rare. Ewing v. California, 538 U.S. 11, 21
22(II)(A), 123 S.Ct. 1179, 155 L.Ed.2d 108
(2003).
[1113] Where, as here, no categorical
Eighth Amendment restriction applies, we
must in the following manner
determin[e] whether a sentence for a term
of years is grossly disproportionate for a
particular defendants crime. A court
must begin by comparing the gravity of
the offense and the severity of the sentence. [Cit.] (I)n the rare case in which
(this) threshold comparison TTT leads to an
inference of gross disproportionality the
court should then compare the defendants
sentence with the sentences received by
other offenders in the same jurisdiction
and with the sentences imposed for the
same crime in other jurisdictions.
Graham v. Florida, supra at (II), 130
S.Ct. 2011. We have emphasize[d] that it is
the rare case( ) in which the threshold inference of gross disproportionality will be met
and a rarer case still in which that threshold
inference stands after further scrutiny.
[Cit.] Humphrey v. Wilson, supra at
532(3)(g), 652 S.E.2d 501 (a rare case because
of the legislative sea change in the punishment for consensual teenage oral sex).
Ga.
365
(A) sentence which is not otherwise cruel

and unusual does not become so simply
because it is mandatory. (Cit.) [Cit.]
Legislative enactments constitute the
clearest and most objective evidence of
how contemporary society views a particular punishment. (Cit.) As a result, the
issue of punishment is generally one for
the legislative branch, and legislative discretion is deferred to unless the sentence
imposed shocks the conscience. (Cit.)
Widner v. State, 280 Ga. 675, 676(1), 631
S.E.2d 675 (2006).
The aggravated child molestation committed by Adams was not a passive felony.
[Cit.] Bragg v. State, 296 Ga.App. 422, 426,
674 S.E.2d 650 (2009). The evidence showed
that, during one of numerous acts of child
molestation, Adams placed his penis to the
young victims mouth, ejaculated, and made
her lick the semen off his penis. Under
these circumstances, Adams 25year sentence does not raise a threshold inference of
gross disproportionality.
Juveniles have been tried as adults and
sentenced to long periods of incarceration in
Georgia. [Cits.] Nor is the legislative decision to impose adult sanctions on youthful
offenders peculiar to Georgia.
[Cits.]
Johnson v. State, 276 Ga. 57, 62(5), 573
S.E.2d 362 (2002) (where the 14yearold
defendant received three concurrent mandatory minimum sentences of 10 years each for
inserting his finger into and putting his
tongue on the six-year-old victims sex organ). Similarly severe punishments for
crimes against children have withstood previous attacks on constitutional grounds.
[Cits.] State v. Ross, 166 Ariz. 579, 804
P.2d 112, 115(II) (Ariz.App.1990) (where the
14yearold defendant was sentenced to 25
years without the possibility of parole for
sexual assault on a 14yearold girl).
[14] 5. The videotaped statement of the
victim was admitted pursuant to the child
hearsay statute found in OCGA 24316.
Adams asserts that the statement was not
properly admitted, because the trial court
failed to make the findings of reliability required by that statute. However, the trial
court actually did make a finding that there
366
Ga.
were sufficient indicia of reliability. Moreover, an express finding in that regard is not
necessary, as the statutory requirement is
met where, as here, after both parties have
rested, the record contains evidence which
would support such a finding. [Cit.] Romani v. State, 303 Ga.App. 829, 830(1), 695
S.E.2d 303 (2010).
[15] Adams also claims that admission of
the videotaped statement violated the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004) and its progeny. However, Adams provides no citation in the record
to any objection on that basis, and we have
found none. He has thus waived [this] objection[ ] on appeal. [Cit.] Sheppard v.
State, 294 Ga.App. 270, 272(2), 669 S.E.2d
152 (2008). See also MelendezDiaz v. Massachusetts, U.S. , (III)(A), fn. 3,
129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Furthermore, the trial court did not make any
ruling on this issue. Verdree v. State, 299
Ga.App. 673, 679(3)(b), 683 S.E.2d 632 (2009).
Judgments affirmed.
All the Justices concur, except
HUNSTEIN, C.J., and MELTON, J., who
concur specially.
HUNSTEIN, Chief Justice, concurring
specially.
I write specially because I disagree with
the majoritys holding in Division 1 that accuseds who were under the age of 13 when
their alleged crimes were committed must
raise their age as an affirmative defense in
order to obtain the protection accorded such
children by OCGA 1631. Pursuant to
that statute, [a] person shall not be considered or found guilty of a crime unless he has
attained the age of 13 years at the time of
the act, omission, or negligence constituting
the crime. This statute preserved the language in former Ga.Code Ann. 26302 and
is intended to have the same effect. That
is, one under the prescribed age is not to be
prosecuted as a criminal, although he may be
dealt with as the law provides for juveniles
who violate the law. Committee Notes to
1.
By logical extension, the majoritys rationale
26701 of the 1968 Criminal Code. I

would recognize that the Legislature with the
enactment of this statutory language has determined that no child under the age of 13
who commits a criminal offense may be accused of, i.e., considered, or found guilty of
committing that crime. Once the date of
birth is established so as to place a child
within the ambit of OCGA 1631, allowing
that child to waive that legal bar would
utterly thwart the Legislatures purpose of
protecting such a child from ever being considered or found guilty of a crime.
OCGA 1631 by its plain language establishes that children who commit criminal
offenses at the time they are under the age
of 13 are categorically ineligible to be prosecuted for or convicted of those offenses. The
statute thus operates in the same manner as
the United States Supreme Courts holding
in Roper v. Simmons, 543 U.S. 551, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005), which categorically prohibits the execution of an accused who
was under the age of 18 when he committed
a capital offense. I would hold that a child
under the age of 13 who commits a criminal
offense is no more able to waive the legal
bar to prosecution set forth in OCGA 16
31 than a defendant who commits a capital
offense when under the age of 18 can waive
the constitutional proscription against the execution of a death sentence. However, under
the majoritys rationale concluding that the
categorical prohibition in OCGA 1631 is
nothing more than an affirmative defense,
it follows that a waiver by a child who does
not raise the effect of his or her age on a
criminal prosecution under OCGA 1631
or, similarly, its effect on the imposition of a
death sentence under Roper, would authorize
the State to prosecute and convict a child of
crimes committed while under 13 years of
age and to execute a child found guilty of a
capital felony committed when under 18
years of age. This result is unwarranted.
Accordingly, I cannot agree with the majoritys holding because it deprives every child in
this State of the protection from prosecution
and conviction that the Legislature in its
wisdom accorded such children in OCGA
1631 1 should that child fail or choose not
also presents the potential of authorizing the
Ga.
ADAMS v. STATE
Cite as 707 S.E.2d 359 (Ga. 2011)
to raise his age as a defense, even in situations where, like here, the State knows that
the childs age may place him within the
laws protection.
In this case, appellants indictment
charged him with committing child molestation and aggravated child molestation occurring on and between May 1, 2007 and March
20, 2008. However, because the State did
not specifically allege that those dates were
material, appellant was subject to being prosecuted and found guilty of the charged
crimes within the applicable seven-year statute of limitation. The record in this case
establishes that appellant was born on August 4, 1992,2 such that the alleged offenses
technically could have occurred at a time
when appellant was legally barred from being considered or found guilty of the charged
crimes, i.e., before appellant attained the age
of 13 on August 4, 2005.
I concur in the majoritys holding not because it is correct regarding the legal application of OCGA 1631 to this case but
because my review of the evidence adduced
at trial establishes that there is no possibility
the jury convicted appellant of the charged
offenses based upon any acts committed
when appellant was under the age of 13.
The victims mother testified at trial that the
victim first related information to her about
the molestation on March 9, 2008. Although
the State curiously failed to introduce any
evidence regarding the victims precise age,3
the victim said she was four years old during
a recorded forensic interview that was conducted on March 14, 2008. Thus, for the
molestation to have occurred before appellant reached the age of criminal responsibili-
ty in August 2005, it would have had to occur

when the victim was, at best, approximately
two years old.4 No reasonable juror could
have found that this particular victim, even if
she were capable at two years of age of
understanding the acts of molestation that
appellant was charged with perpetrating on
her, somehow remembered those acts and
yet waited over 30 months before making the
statements that alerted her mother 5 and
then detailing the molestation in the present
tense manner shown by the recorded forensic
interview viewed by the jury.
Accordingly, I concur for evidentiary reasons only in the majoritys holding. I also
take the opportunity to caution prosecutors
that where, as here, the potential exists that
an accused was under the age of 13 within
the statute of limitation applicable to the
commission of a charged criminal offense, the
indictment should be drafted carefully to
avoid any possibility of the jury considering
or finding the accused guilty before he or she
has attained the age of 13 years at the time
of the act, omission, or negligence constituting the crime. OCGA 1631.
I am authorized to state that Justice MELTON joins in this special concurrence.
State in violation of Roper, supra, to use the

childs waiver as the reason to execute a child
under the age of 18 at the time he committed a
capital offense.
2.
A review of the record in this casefrom the

affidavit submitted to the magistrate court to
obtain the arrest warrant to the superior courts
production orders to the youth detention center
to release appellant for trial is replete with notations identifying appellant by his birth date. I
thus disagree with the majority that any fact
question exists in this case regarding when appellant was born. There is no issue whether the
State put the incorrect date of birth on appellants arrest warrant or whether the inmate pro-
367
duction orders to the youth detention center

identified a different Mitchell Adams with the
DOB: 08/04/1992.
3. The prosecutor in opening stated that the victim was four years old [w]hen this happened
but was currently five at the time of the January 2009 trial.
4.
This assumes that the victim was just shy of her

fifth birthday at the time of the forensic interview.
5.
The victim complained on March 9, 2008 about

experiencing pain when the mother sought to
bathe her.
This page left intentionally blank and unnumbered.
2242
122 SUPREME COURT REPORTER
regulatory authority of a State does not

encompass the authority of a political subdivision. For this reason, I respectfully
dissent.
,
536 U.S. 304, 153 L.Ed.2d 335
S 304Daryl Renard ATKINS, Petitioner,

v.
VIRGINIA.
No. 008452.
Argued Feb. 20, 2002.
Decided June 20, 2002.
536 U.S. 451
is not graduated and proportioned to offense. U.S.C.A. Const.Amend. 8.

See publication Words and Phrases for other judicial constructions
and definitions.

Claim that punishment is unconstitutionally excessive is judged by currently
prevailing standards of decency. U.S.C.A.
Const.Amend. 8.
3. Criminal Law O1480, 1483
Determination of whether punishment
in particular case is unconstitutionally excessive in light of evolving community
standards should be informed by objective
factors to maximum possible extent, with
clearest and most reliable one being legislation enacted by countrys legislatures.
U.S.C.A. Const.Amend. 8.
Defendant was convicted, in the Circuit Court, York County, N. Prentis Smiley, Jr., J., of capital murder and was
sentenced to death. The Virginia Supreme
Court affirmed the conviction, 257 Va. 160,
510 S.E.2d 445, and sentence, 260 Va. 375,
534 S.E.2d 312. Certiorari was granted.
The Supreme Court, Justice Stevens, held
that executions of mentally retarded criminals were cruel and unusual punishments
prohibited by Eighth Amendment.
Reversed and remanded.
Chief Justice Rehnquist dissented and
filed opinion in which Justices Scalia and
Thomas joined.

In deciding whether punishment in
particular case is unconstitutionally excessive, Supreme Court may bring its own
judgment to bear by asking whether there
is reason to agree or disagree with judgment reached by citizenry and its legislators. U.S.C.A. Const.Amend. 8.
Execution of mentally retarded criminal is unconstitutionally cruel and unusual
punishment. U.S.C.A. Const.Amend. 8.
Syllabus *
Punishment is excessive, and therefore prohibited by Eighth Amendment, if it
Petitioner Atkins was convicted of

capital murder and related crimes by a
Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court relied
on Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934, 106 L.Ed.2d 256, in rejecting
Atkins contention that he could not be
sentenced to death because he is mentally
retarded.
* The syllabus constitutes no part of the opinion

of the Court but has been prepared by the
Reporter of Decisions for the convenience of
the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 50 L.Ed. 499.
Justice Scalia dissented and filed opinion in which Chief Justice Rehnquist and
Justice Thomas joined.
536 U.S. 305
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
Held: Executions of mentally retarded criminals are cruel and unusual punishments prohibited by the Eighth
Amendment. Pp. 22462252.
(a) A punishment is excessive, and
therefore prohibited by the Amendment, if
it is not graduated and proportioned to the
offense. E.g., Weems v. United States, 217
U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793.
An excessiveness claim is judged by currently prevailing standards of decency.
Trop v. Dulles, 356 U.S. 86, 100101, 78
S.Ct. 590, 2 L.Ed.2d 630. Proportionality
review under such evolving standards
should be informed by objective factors to
the maximum possible extent, see, e.g.,
Harmelin v. Michigan, 501 U.S. 957, 1000,
111 S.Ct. 2680, 115 L.Ed.2d 836, the clearest and most reliable of which is the legislation enacted by the countrys legislatures, Penry, 492 U.S., at 331, 109 S.Ct.
2934. In addition to objective evidence,
the Constitution contemplates that this
Court will bring its own judgment to bear
by asking whether there is reason to agree
or disagree with the judgment reached by
the citizenry and its legislators, e.g., Coker
v. Georgia, 433 U.S. 584, 597, 97 S.Ct.
2861, 53 L.Ed.2d 982. Pp. 22462248.
(b) Much has changed since Penrys
conclusion that the two state statutes then
existing that prohibited such executions,
even when added to the 14 States that had
rejected capital punishment completely,
did not provide sufficient evidence of a
consensus. 492 U.S., at 334, 109 S.Ct.
2934. Subsequently, a significant number
of States have concluded that death is not
a suitable punishment for a mentally retarded criminal, and similar bills have
passed at least one house in other States.
It is not so much the number of these
States that is significant, but the consistency of the direction of change. Given
that anticrime legislation is far more popular than legislation protecting violent criminals, the large number of States prohibiting the execution of mentally retarded
persons (and the complete absence of leg-
2243
islation reinstating such executions) provides powerful evidence that today society
views mentally retarded offenders as categorically less culpable than the average
criminal.
The evidence carries even
greater force when it is noted that the
legislatures addressing the issue have voted overwhelmingly in favor of the prohibition. S 305Moreover, even in States allowing
the execution of mentally retarded offenders, the practice is uncommon. Pp. 2248
2250.
(c) An independent evaluation of the
issue reveals no reason for the Court to
disagree with the legislative consensus.
Clinical definitions of mental retardation
require not only subaverage intellectual
functioning, but also significant limitations
in adaptive skills. Mentally retarded persons frequently know the difference between right and wrong and are competent
to stand trial, but, by definition, they have
diminished capacities to understand and
process information, to communicate, to
abstract from mistakes and learn from experience, to engage in logical reasoning, to
control impulses, and to understand others reactions. Their deficiencies do not
warrant an exemption from criminal sanctions, but diminish their personal culpability. In light of these deficiencies, the
Courts death penalty jurisprudence provides two reasons to agree with the legislative consensus. First, there is a serious
question whether either justification underpinning the death penaltyretribution
and deterrence of capital crimesapplies
to mentally retarded offenders. As to retribution, the severity of the appropriate
punishment necessarily depends on the offenders culpability. If the culpability of
the average murderer is insufficient to justify imposition of death, see Godfrey v.
Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759,
64 L.Ed.2d 398, the lesser culpability of
the mentally retarded offender surely does
not merit that form of retribution. As to
deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable
2244
also make it less likely that they can process the information of the possibility of
execution as a penalty and, as a result,
control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the
death penaltys deterrent effect with respect to offenders who are not mentally
retarded. Second, mentally retarded defendants in the aggregate face a special
risk of wrongful execution because of the
possibility that they will unwittingly confess to crimes they did not commit, their
lesser ability to give their counsel meaningful assistance, and the facts that they
are typically poor witnesses and that their
demeanor may create an unwarranted impression of lack of remorse for their
crimes. Pp. 22502252.
260 Va. 375, 534 S.E.2d 312, reversed
and remanded.
STEVENS, J., delivered the opinion
of the Court, in which OCONNOR,
KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. REHNQUIST,
C.J., filed a dissenting opinion, in which
SCALIA and THOMAS, JJ., joined, post,
p. 2252. SCALIA, J., filed a dissenting
opinion, in which REHNQUIST, C.J., and
THOMAS, J., joined, post, p. 2259.
S 306James W. Ellis, for the petitioner.
Pamela A. Rumpz, for the respondent.
For U.S. Supreme Court briefs, see:
2001 WL 1663817 (Pet.Brief)
2002 WL 63726 (Resp.Brief)
2002 WL 225883 (Reply.Brief)
536 U.S. 305
judgment, and control of their impulses,

however, they do not act with the level of
moral culpability that characterizes the
most serious adult criminal conduct.
Moreover, their impairments can jeopardize the S 307reliability and fairness of capital
proceedings against mentally retarded defendants. Presumably for these reasons,
in the 13 years since we decided Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989), the American public,
legislators, scholars, and judges have deliberated over the question whether the
death penalty should ever be imposed on a
mentally retarded criminal. The consensus reflected in those deliberations informs
our answer to the question presented by
this case: whether such executions are
cruel and unusual punishments prohibited by the Eighth Amendment to the Federal Constitution.
I
Petitioner, Daryl Renard Atkins, was
convicted of abduction, armed robbery,
and capital murder, and sentenced to
death. At approximately midnight on August 16, 1996, Atkins and William Jones,
armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the
money on his person, drove him to an
automated teller machine in his pickup
truck where cameras recorded their withdrawal of additional cash, then took him to
an isolated location where he was shot
eight times and killed.
Those mentally retarded persons who

meet the laws requirements for criminal
responsibility should be tried and punished
when they commit crimes. Because of
their disabilities in areas of reasoning,
Jones and Atkins both testified in the

guilt phase of Atkins trial.1 Each confirmed most of the details in the others
account of the incident, with the important
exception that each stated that the other
had actually shot and killed Nesbitt.
Jones testimony, which was both more
coherent and credible than Atkins, was
obviously credited by the jury and was
Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-
degree murder in exchange for his testimony

against Atkins. As a result of the plea, Jones
became ineligible to receive the death penalty.
Justice STEVENS delivered the opinion

of the Court.
1.
536 U.S. 309
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
2245
sufficient to establish Atkins guilt.2 At

the penalty S 308phase of the trial, the State
introduced victim impact evidence and
proved two aggravating circumstances: future dangerousness and vileness of the
offense. To prove future dangerousness,
the State relied on Atkins prior felony
convictions as well as the testimony of four
victims of earlier robberies and assaults.
To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceaseds body and the
autopsy report.
In the penalty phase, the defense relied

on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins
before trial and concluded that he was
mildly mentally retarded. 3 His conclusion was based on interviews with people
who knew Atkins,4 a review of school and
court S 309records, and the administration of
a standard intelligence test which indicated that Atkins had a full scale IQ of 59.5
Highly damaging to the credibility of Atkins

testimony was its substantial inconsistency
with the statement he gave to the police upon
his arrest. Jones, in contrast, had declined to
make an initial statement to the authorities.
months. Dr. Nelson also reviewed the statements that Atkins had given to the police and
the investigative reports concerning this case.
2.
3.
The American Association on Mental Retardation (AAMR) defines mental retardation as

follows: Mental retardation refers to substantial limitations in present functioning. It
is characterized by significantly subaverage
intellectual functioning, existing concurrently
with related limitations in two or more of the
following applicable adaptive skill areas:
communication, self-care, home living, social
skills, community use, self-direction, health
and safety, functional academics, leisure, and
work. Mental retardation manifests before
age 18. Mental Retardation: Definition,
Classification, and Systems of Supports 5 (9th
ed.1992).
The American Psychiatric Associations definition is similar: The essential feature of
Mental Retardation is significantly subaverage general intellectual functioning (Criterion
A) that is accompanied by significant limitations in adaptive functioning in at least two of
the following skill areas: communication,
self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The
onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final
common pathway of various pathological processes that affect the functioning of the central nervous system. Diagnostic and Statistical Manual of Mental Disorders 41 (4th
ed.2000). Mild mental retardation is typically used to describe people with an IQ level
of 5055 to approximately 70. Id., at 4243.
4.
The doctor interviewed Atkins, members of

his family, and deputies at the jail where he
had been incarcerated for the preceding 18
The jury sentenced Atkins to death, but

the Virginia Supreme Court ordered a sec-
5.
Dr. Nelson administered the Wechsler Adult

Intelligence Scales test (WAISIII), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAISIII is
scored by adding together the number of
points earned on different subtests, and using
a mathematical formula to convert this raw
score into a scaled score. The test measures
an intelligence range from 45 to 155. The
mean score of the test is 100, which means
that a person receiving a score of 100 is
considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAISIII Assessment 60
(1999). It is estimated that between 1 and 3
percent of the population has an IQ between
70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual
function prong of the mental retardation definition. 2 Kaplan & Sadocks Comprehensive
Textbook of Psychiatry 2952 (B. Sadock & V.
Sadock eds. 7th ed.2000).
At the sentencing phase, Dr. Nelson testified: [Atkins] full scale IQ is 59. Compared
to the population at large, that means less
than one percentile TTT. Mental retardation is
a relatively rare thing. Its about one percent
of the population. App. 274. According to
Dr. Nelson, Atkins IQ score would automatically qualify for Social Security disability income. Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that
he had evaluated, Atkins was only the second
individual who met the criteria for mental
retardation. Id., at 310. He testified that, in
his opinion, Atkins limited intellect had been
a consistent feature throughout his life, and
that his IQ score of 59 is not an aberration,
malingered result, or invalid test score. Id.,
at 308.
2246
ond sentencing hearing because the trial

court had used a misleading verdict form.
257 Va. 160, 510 S.E.2d 445 (1999). At the
resentencing, Dr. Nelson again testified.
The State presented an expert rebuttal
witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not
mentally retarded, but rather was of average intelligence, at least, and diagnosable as having antisocial personality disorder.6 App. 476. The jury again sentenced
Atkins to death.
S 310The Supreme Court of Virginia affirmed the imposition of the death penalty.
260 Va. 375, 385, 534 S.E.2d 312, 318
(2000). Atkins did not argue before the
Virginia Supreme Court that his sentence
was disproportionate to penalties imposed
for similar crimes in Virginia, but he did
contend that he is mentally retarded and
thus cannot be sentenced to death. Id.,
at 386, 534 S.E.2d, at 318. The majority of
the state court rejected this contention,
relying on our holding in Penry. 260 Va.,
at 387, 534 S.E.2d, at 319. The court was
not willing to commute Atkins sentence
of death to life imprisonment merely because of his IQ score. Id., at 390, 534
S.E.2d, at 321.
Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenows
opinion that Atkins possesses average intelligence as incredulous as a matter of
law, and concluded that the imposition
of the sentence of death upon a criminal
defendant who has the mental age of a
child between the ages of 9 and 12 is
excessive. Id., at 394, 395396, 534
S.E.2d, at 323324. In their opinion, it is
indefensible to conclude that individuals
who are mentally retarded are not to
6.
Dr. Samenows testimony was based upon

two interviews with Atkins, a review of his
school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken
from the 1972 version of the Wechsler Memory Scale. Id., at 524525, 529. Dr. Samenow attributed Atkins academic performance [that was] by and large terrible to the
536 U.S. 309
some degree less culpable for their criminal acts. By definition, such individuals
have substantial limitations not shared by
the general population. A moral and civilized society diminishes itself if its system
of justice does not afford recognition and
consideration of those limitations in a
meaningful way. Id., at 397, 534 S.E.2d,
at 325.
Because of the gravity of the concerns
expressed by the dissenters, and in light of
the dramatic shift in the state legislative
landscape that has occurred in the past 13
years, we granted certiorari to revisit the
issue that we first addressed in the Penry
case. 533 U.S. 976, 122 S.Ct. 24, 150
L.Ed.2d 805 (2001).
S 311II
[1] The Eighth Amendment succinctly
prohibits [e]xcessive sanctions. It provides: Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
In Weems v. United States, 217 U.S. 349,
30 S.Ct. 544, 54 L.Ed. 793 (1910), we held
that a punishment of 12 years jailed in
irons at hard and painful labor for the
crime of falsifying records was excessive.
We explained that it is a precept of justice that punishment for crime should be
graduated and proportioned to [the] offense. Id., at 367, 30 S.Ct. 544. We have
repeatedly applied this proportionality precept in later cases interpreting the Eighth
Amendment. See Harmelin v. Michigan,
501 U.S. 957, 997998, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also id., at 10091011, 111 S.Ct.
2680 (White, J., dissenting).7 Thus, even
fact that he is a person who chose to pay
attention sometimes, not to pay attention others, and did poorly because he did not want
to do what he was required to do. Id., at
480481.
7.
Thus, we have read the text of the Amendment to prohibit all excessive punishments, as
well as cruel and unusual punishments that
may or may not be excessive.
536 U.S. 313
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
though imprisonment for ninety days is

not, in the abstract, a punishment which is
either cruel or unusual, it may not be
imposed as a penalty for the status of
narcotic addiction, Robinson v. California, 370 U.S. 660, 666667, 82 S.Ct. 1417, 8
L.Ed.2d 758 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: Even one day
in prison would be a cruel and unusual
punishment for the crime of having a
common cold. Id., at 667, 82 S.Ct. 1417.
[2] A claim that punishment is excessive is judged not by the standards that
prevailed in 1685 when Lord Jeffreys presided over the Bloody Assizes or when
the Bill of Rights was adopted, but rather
by those that currently prevail. As Chief
Justice Warren explained in his opinion in
Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2
L.Ed.2d 630 (1958): The basic concept
underlying the Eighth Amendment is
nothing less than the dignity of manTTTT
The Amendment must draw its meaning
from the S 312evolving standards of decency
that mark the progress of a maturing society. Id., at 100101, 78 S.Ct. 590.
[3] Proportionality review under those
evolving standards should be informed by
objective factors to the maximum possible extent, see Harmelin, 501 U.S., at
1000, 111 S.Ct. 2680 (quoting Rummel v.
Estelle, 445 U.S. 263, 274275, 100 S.Ct.
1133, 63 L.Ed.2d 382 (1980)). We have
pinpointed that the clearest and most reliable objective evidence of contemporary
values is the legislation enacted by the
countrys legislatures. Penry, 492 U.S.,
at 331, 109 S.Ct. 2934. Relying in part on
such legislative evidence, we have held
that death is an impermissibly excessive
punishment for the rape of an adult woman, Coker v. Georgia, 433 U.S. 584, 593
596, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977),
or for a defendant who neither took life,
attempted to take life, nor intended to take
life, Enmund v. Florida, 458 U.S. 782,
789793, 102 S.Ct. 3368, 73 L.Ed.2d 1140
(1982). In Coker, we focused primarily on
2247
the then-recent legislation that had been

enacted in response to our decision 10
years earlier in Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972) (per curiam), to support the conclusion that the current judgment, though
not wholly unanimous, weighed very
heavily on the side of rejecting capital
punishment as a suitable penalty for raping an adult woman. Coker, 433 U.S., at
596, 97 S.Ct. 2861. The current legislative judgment relevant to our decision in
Enmund was less clear than in Coker but
nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at
issue. Enmund, 458 U.S., at 793, 102
S.Ct. 3368.
[4] We also acknowledged in Coker
that the objective evidence, though of
great importance, did not wholly determine the controversy, for the 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.
433 U.S., at 597, 97 S.Ct. 2861. For example, in Enmund, we concluded by expressing our own judgment about the issue:
For purposes of imposing the death
penalty, Enmunds criminal culpability
must be limited to his participation S 313in
the robbery, and his punishment must
be tailored to his personal responsibility
and moral guilt. Putting Enmund to
death to avenge two killings that he did
not commit and had no intention of committing or causing does not measurably
contribute to the retributive end of ensuring that the criminal gets his just
deserts. This is the judgment of most
of the legislatures that have recently
addressed the matter, and we have no
reason to disagree with that judgment
for purposes of construing and applying
the Eighth Amendment. 458 U.S., at
801, 102 S.Ct. 3368 (emphasis added).
Thus, in cases involving a consensus, our
own judgment is brought to bear, Coker,
433 U.S., at 597, 97 S.Ct. 2861, by asking
whether there is reason to disagree with
2248
the judgment reached by the citizenry and

its legislators.
Guided by our approach in these cases,
we shall first review the judgment of legislatures that have addressed the suitability
of imposing the death penalty on the mentally retarded and then consider reasons
for agreeing or disagreeing with their
judgment.
III
The parties have not called our attention
to any state legislative consideration of the
suitability of imposing the death penalty
on mentally retarded offenders prior to
1986. In that year, the public reaction to
the execution of a mentally retarded murderer in Georgia 8 apparently led to the
enactSment314 of the first state statute prohibiting such executions.9 In 1988, when
Congress enacted legislation reinstating
the federal death penalty, it expressly provided that a sentence of death shall not be
carried out upon a person who is mentally
retarded. 10 In 1989, Maryland enacted a
similar prohibition.11 It was in that year
that we decided Penry, and concluded that
8.
Jerome Bowden, who was identified as having mental retardation when he was 14 years
old, was scheduled for imminent execution in
Georgia in June 1986. The Georgia Board of
Pardons and Paroles granted a stay following
public protests over his execution. A psychologist selected by the State evaluated Bowden
and determined that he had an IQ of 65,
which is consistent with mental retardation.
Nevertheless, the board lifted the stay and
Bowden was executed the following day. The
board concluded that Bowden understood the
nature of his crime and his punishment and
therefore that execution, despite his mental
deficiencies, was permissible. See Montgomery, Bowdens Execution Stirs Protest, Atlanta
Journal, Oct. 13, 1986, p. A1.
Ga.Code Ann. 177131(j) (Supp.1988).
9.
The AntiDrug Abuse Act of 1988, Pub.L.

100690, 7001(l ), 102 Stat. 4390, 21 U.S.C.
848(l ). Congress expanded the federal
death penalty law in 1994. It again included
a provision that prohibited any individual
with mental retardation from being sentenced
to death or executed. Federal Death Penalty
Act of 1994, 18 U.S.C. 3596(c).
536 U.S. 313
those two state enactments, even when

added to the 14 States that have rejected
capital punishment completely, do not provide sufficient evidence at present of a
national consensus. 492 U.S., at 334, 109
S.Ct. 2934.
Much has changed since then. Responding to the national attention received
by the Bowden execution and our decision
in Penry, state legislatures across the
country began to address the issue. In
1990, Kentucky and Tennessee enacted
statutes similar to those in Georgia and
Maryland, as did New Mexico in 1991, and
Arkansas, Colorado, Washington, Indiana,
and Kansas in 1993 and 1994.12 In 1995,
when New York reinstated its death penalty, it emulated the Federal Government by
expressly exempting the mentally retarded.13 Nebraska followed suit in 1998.14
There appear S 315to have been no similar
enactments during the next two years, but
in 2000 and 2001 six more StatesSouth
Dakota, Arizona, Connecticut, Florida,
Missouri, and North Carolinajoined the
procession.15 The Texas Legislature unan11.
Md. Ann.Code, Art. 27, 412(f)(1) (1989).
Ky.Rev.Stat. Ann. 532.130, 532.135,

532.140; Tenn.Code Ann. 3913203; N.M.
Stat. Ann. 3120A2.1; Ark.Code Ann. 5
4618; Colo.Rev.Stat. 169401; Wash.
Rev.Code 10.95.030; Ind.Code 35369
2 through 353696; Kan. Stat. Ann. 21
4623.
12.
N.Y.Crim. Proc. Law 400.27. However,

New York law provides that a sentence of
death may not be set aside TTT upon the
ground that the defendant is mentally retarded if the killing occurred while the defendant was confined or under custody in a state
correctional facility or local correctional institution. N.Y.Crim. Proc. Law 400.27.12(d)
(McKinney 20012002 Interim Pocket Part).
13.
10.
14.
Neb.Rev.Stat. 28105.01.
S.D. Codified Laws 23A27A26.1; Ariz.

Rev.Stat. Ann. 13703.02; Conn. Gen.Stat.
53a46a; Fla. Stat. 921.137; Mo.Rev.
Stat. 565.030; 2001346 N.C. Sess. Laws p.
45.
15.
536 U.S. 316
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
2249
imously adopted a similar bill,16 and bills

have passed at least one house in other
States, including Virginia and Nevada.17
It is not so much the number of these
States that is significant, but the consistency of the direction of change.18 Given the
well-known fact that anticrime legislation
is far more popular than legislation providing protections for persons guilty of violent
crime, the large number of States prohibiting the execution of mentally retarded persons (and the S 316complete absence of
States passing legislation reinstating the
power to conduct such executions) provides
powerful evidence that today our society
views mentally retarded offenders as categorically less culpable than the average
criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have
voted overwhelmingly in favor of the prohibition.19 Moreover, even in those States

that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New
Hampshire and New Jersey, continue to
authorize executions, but none have been
carried out in decades. Thus there is little
need to pursue legislation barring the execution of the mentally retarded in those
States. And it appears that even among
those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five
have executed offenders possessing a
known IQ less than 70 since we decided
Penry.20 The practice, therefore, has become truly unusual, and it is fair to say
that a national consensus has developed
against it.21
House Bill No. 236 passed the Texas

House on April 24, 2001, and the Senate
version, S. 686, passed the Texas Senate on
May 16, 2001. Governor Perry vetoed the
legislation on June 17, 2001. In his veto
statement, the Texas Governor did not express
dissatisfaction with the principle of categorically excluding the mentally retarded from
the death penalty. In fact, he stated: We do
not execute mentally retarded murderers today. See Veto Proclamation for H.B. No.
236. Instead, his motivation to veto the bill
was based upon what he perceived as a procedural flaw: My opposition to this legislation focuses on a serious legal flaw in the bill.
House Bill No. 236 would create a system
whereby the jury and judge are asked to make
the same determination based on two different sets of facts TTT. Also of grave concern is
the fact that the provision that sets up this
legally flawed process never received a public
hearing during the legislative process. Ibid.
day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont.Code
Ann. 455102 (1999); Ind.Code 3550
23 (1998).
16.
Virginia Senate Bill No. 497 (2002);

House Bill No. 957 (2002); see also Nevada
Assembly Bill 353 (2001). Furthermore, a
commission on capital punishment in Illinois
has recently recommended that Illinois adopt
a statute prohibiting the execution of mentally
retarded offenders. Report of the Governors
Commission on Capital Punishment 156 (Apr.
2002).
17.
A comparison to Stanford v. Kentucky, 492

U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306
(1989), in which we held that there was no
national consensus prohibiting the execution
of juvenile offenders over age 15, is telling.
Although we decided Stanford on the same
18.
App. D to Brief for AAMR et al. as Amici

Curiae.
19.
Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes,
W. Edwards, & R. Perske, People with Mental
Retardation are Dying Legally, 35 Mental Retardation (Feb.1997) (updated by Death Penalty Information Center, available at
http://www.advocacyone.org/deathpenalty.
html (as visited June 18, 2002).
20.
Additional evidence makes it clear that this

legislative judgment reflects a much broader
social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a
mentally retarded offender. See Brief for
American Psychological Association et al. as
Amici Curiae; Brief for AAMR et al. as Amici
Curiae. In addition, representatives of widely
diverse religious communities in the United
States, reflecting Christian, Jewish, Muslim,
and Buddhist traditions, have filed an amicus
curiae brief explaining that even though their
views about the death penalty differ, they all
share a conviction that the execution of persons with mental retardation cannot be morally justified. Brief for United States Catholic Conference et al. as Amici Curiae 2.
21.
2250
S 317To the extent there is serious disagreement about the execution of mentally
retarded offenders, it is in determining
which offenders are in fact retarded. In
this case, for instance, the Commonwealth
of Virginia disputes that Atkins suffers
from mental retardation. Not all people
who claim to be mentally retarded will be
so impaired as to fall within the range of
mentally retarded offenders about whom
there is a national consensus. As was our
approach in Ford v. Wainwright, 477 U.S.
399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986),
with regard to insanity, we leave to the
State[s] the task of developing appropriate
ways to enforce the constitutional restriction upon [their] execution of sentences.
Id., at 405, 416417, 106 S.Ct. 2595.22
IV
This consensus unquestionably reflects
widespread judgment about the relative
culpability of mentally retarded offenders,
and the relationship between mental retardation and the penological purposes served
by the death penalty. Additionally, it suggests that some characteristics of mental
Moreover, within the world community, the
imposition of the death penalty for crimes
committed by mentally retarded offenders is
overwhelmingly disapproved. Brief for European Union as Amicus Curiae 4. Finally,
polling data shows a widespread consensus
among Americans, even those who support
the death penalty, that executing the mentally
retarded is wrong. Bonner & Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N.Y. Times, Aug. 7, 2000, p. A1;
App. B to Brief for AAMR, et al. as Amici
Curiae (appending approximately 20 state and
national polls on the issue). Although these
factors are by no means dispositive, their consistency with the legislative evidence lends
further support to our conclusion that there is
a consensus among those who have addressed
the issue. See Thompson v. Oklahoma, 487
U.S. 815, 830, 831, n. 31, 108 S.Ct. 2687, 101
L.Ed.2d 702 (1988) (considering the views of
respected professional organizations, by other nations that share our AngloAmerican
heritage, and by the leading members of the
Western European community).
The statutory definitions of mental retardation are not identical, but generally conform
22.
536 U.S. 317
retardation undermine the strength of the

procedural protections that our capital jurisprudence steadfastly guards.
S 318As discussed above, clinical definitions of mental retardation require not
only subaverage intellectual functioning,
but also significant limitations in adaptive
skills such as communication, self-care,
and self-direction that became manifest before age 18. Mentally retarded persons
frequently know the difference between
right and wrong and are competent to
stand trial. Because of their impairments,
however, by definition they have diminished capacities to understand and process
information, to communicate, to abstract
from mistakes and learn from experience,
to engage in logical reasoning, to control
impulses, and to understand the reactions
of others.23 There is no evidence that they
are more likely to engage in criminal conduct than others, but there is abundant
evidence that they often act on impulse
rather than pursuant to a premeditated
plan, and that in group settings they are
followers rather than leaders.24 Their deto the clinical definitions set forth in n. 3,
supra.
J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in
the Criminal Justice System, in The Criminal
Justice System and Mental Retardation 55,
5860 (R. Conley, R. Luckasson, & G. Bouthilet eds.1992); Appelbaum & Appelbaum,
CriminalJustice Related Competencies in Defendants with Mental Retardation, 14 J. of
Psychiatry & L. 483, 487489 (Winter 1994).
23.
See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash.
L.Rev. 414, 429 (1985); LevyShiff, Kedem,
& Sevillia, Ego Identity in Mentally Retarded
Adolescents, 94 Am. J. Mental Retardation
541, 547 (1990); Whitman, Self Regulation
and Mental Retardation, 94 Am. J. Mental
Retardation 347, 360 (1990); Everington &
Fulero, Competence to Confess: Measuring
Understanding and Suggestibility of Defendants with Mental Retardation, 37 Mental Retardation 212, 212213, 535 (1999) (hereinafter Everington & Fulero).
24.
536 U.S. 320
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
ficiencies do not warrant an exemption

from criminal sanctions, but they do diminish their personal culpability.
In light of these deficiencies, our death
penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be
categorically excluded from execution.
First, there is a serious question as to
whether either justification that we have
recognized as S 319a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U.S. 153, 183,
96 S.Ct. 2909, 49 L.Ed.2d 859, (1976) (joint
opinion of Stewart, Powell, and STEVENS, JJ.), identified retribution and deterrence of capital crimes by prospective
offenders as the social purposes served by
the death penalty. Unless the imposition
of the death penalty on a mentally retarded person measurably contributes to one
or both of these goals, it is nothing more
than the purposeless and needless imposition of pain and suffering, and hence an
unconstitutional punishment. Enmund,
458 U.S., at 798, 102 S.Ct. 3368.
With respect to retributionthe interest
in seeing that the offender gets his just
desertsthe severity of the appropriate
punishment necessarily depends on the
culpability of the offender. Since Gregg,
our jurisprudence has consistently confined the imposition of the death penalty to
a narrow category of the most serious
crimes. For example, in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64
L.Ed.2d 398 (1980), we set aside a death
sentence because the petitioners crimes
did not reflect a consciousness materially
more depraved than that of any person
guilty of murder. Id., at 433, 100 S.Ct.
1759. If the culpability of the average
murderer is insufficient to justify the most
extreme sanction available to the State,
the lesser culpability of the mentally retarded offender surely does not merit that
form of retribution. Thus, pursuant to our
narrowing jurisprudence, which seeks to
ensure that only the most deserving of
2251
execution are put to death, an exclusion for

the mentally retarded is appropriate.
With respect to deterrencethe interest
in preventing capital crimes by prospective
offendersit seems likely that capital
punishment can serve as a deterrent only
when murder is the result of premeditation
and deliberation, Enmund, 458 U.S., at
799, 102 S.Ct. 3368. Exempting the mentally retarded from that punishment will
not affect the cold calculus that precedes
the decision of other potential murderers.
Gregg, 428 U.S., at 186, 96 S.Ct. 2909.
Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of
mentally retarded S 320offenders. The theory of deterrence in capital sentencing is
predicated upon the notion that the increased severity of the punishment will
inhibit criminal actors from carrying out
murderous conduct. Yet it is the same
cognitive and behavioral impairments that
make these defendants less morally culpablefor example, the diminished ability to
understand and process information, to
learn from experience, to engage in logical
reasoning, or to control impulsesthat
also make it less likely that they can process the information of the possibility of
execution as a penalty and, as a result,
control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the
deterrent effect of the death penalty with
respect to offenders who are not mentally
retarded. Such individuals are unprotected by the exemption and will continue to
face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.
The reduced capacity of mentally retarded offenders provides a second justification
for a categorical rule making such offenders ineligible for the death penalty. The
risk that the death penalty will be imposed in spite of factors which may call for
a less severe penalty, Lockett v. Ohio, 438
U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978), is enhanced, not only by the
2252
possibility of false confessions,25 but also

by the lesser ability of mentally retarded
defendants to make a persuasive showing
of mitigation in the face of prosecutorial
evidence of one or more aggravating factors. Mentally retarded defendants may
be less able to give meaningful assistance
to their counsel and S 321are typically poor
witnesses, and their demeanor may create
an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a
two-edged sword that may enhance the
likelihood that the aggravating factor of
future dangerousness will be found by the
jury. 492 U.S., at 323325, 109 S.Ct. 2934.
Mentally retarded defendants in the aggregate face a special risk of wrongful
execution.
[5] Our independent evaluation of the
issue reveals no reason to disagree with
the judgment of the legislatures that
have recently addressed the matter and
concluded that death is not a suitable punishment for a mentally retarded criminal.
We are not persuaded that the execution
of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty.
Construing and applying the Eighth
Amendment in the light of our evolving
standards of decency, we therefore conclude that such punishment is excessive
and that the Constitution places a substantive restriction on the States power
to take the life of a mentally retarded
offender. Ford, 477 U.S., at 405, 106
S.Ct. 2595.
536 U.S. 320
ed for further proceedings not inconsistent

with this opinion.
It is so ordered.
Chief Justice REHNQUIST, with whom
Justice SCALIA and Justice THOMAS
join, dissenting.
The question presented by this case is
whether a national consensus deprives Virginia of the constitutional power to impose
the death penalty on capital murder defendants like petitioner, i.e., those defendants
who indisputably are competent to stand
trial, aware of the punishment they are
about to suffer and why, and whose mental
retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The
Court pronounces S 322the punishment cruel
and unusual primarily because 18 States
recently have passed laws limiting the
death eligibility of certain defendants
based on mental retardation alone, despite
the fact that the laws of 19 other States
besides Virginia continue to leave the
question of proper punishment to the individuated consideration of sentencing
judges or juries familiar with the particular offender and his or her crime. See
ante, at 2248.
The judgment of the Virginia Supreme

Court is reversed and the case is remand-
I agree with Justice SCALIA, post, at

2259 (dissenting opinion), that the Courts
assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post
hoc rationalization for the majoritys subjectively preferred result rather than any
objective effort to ascertain the content of
an evolving standard of decency. I write
separately, however, to call attention to
the defects in the Courts decision to place
weight on foreign laws, the views of professional and religious organizations, and
See Everington & Fulero 212213. Despite the heavy burden that the prosecution
must shoulder in capital cases, we cannot
ignore the fact that in recent years a disturbing number of inmates on death row have
been exonerated. These exonerations have
included at least one mentally retarded person who unwittingly confessed to a crime that
he did not commit. See Baker, DeathRow
Inmate Gets Clemency; Agreement Ends
Days of Suspense, Washington Post, Jan. 15,
1994, p. A1.
25.
536 U.S. 324
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
opinion polls in reaching its conclusion.

See ante, at 22492250, n. 21. The Courts
suggestion that these sources are relevant
to the constitutional question finds little
support in our precedents and, in my view,
is antithetical to considerations of federalism, which instruct that any permanent
prohibition upon all units of democratic
government must [be apparent] in the operative acts (laws and the application of
laws) that the people have approved.
Stanford v. Kentucky, 492 U.S. 361, 377,
109 S.Ct. 2969, 106 L.Ed.2d 306 (1989)
(plurality opinion). The Courts uncritical
acceptance of the opinion poll data brought
to our attention, moreover, warrants additional comment, because we lack sufficient
information to conclude that the surveys
were conducted in accordance with generally accepted scientific principles or are
capable of supporting valid empirical inferences about the issue before us.
In making determinations about whether a punishment is cruel and unusual
under the evolving standards of decency
embraced by the Eighth Amendment, we
have emphasized that legislation is the
clearest and most reliable objective
S 323evidence of contemporary values.
Penry v. Lynaugh, 492 U.S. 302, 331, 109
S.Ct. 2934, 106 L.Ed.2d 256 (1989). See
also McCleskey v. Kemp, 481 U.S. 279, 300,
107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing
policy of a State. [I]n a democratic society legislatures, not courts, are constituted
to respond to the will and consequently the
moral values of the people. Gregg v.
Georgia, 428 U.S. 153, 175176, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976) (joint opinion
of Stewart, Powell, and STEVENS, JJ.)
(quoting Furman v. Georgia, 408 U.S. 238,
383, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)
(Burger, C. J., dissenting)). And because
the specifications of punishments are peculiarly questions of legislative policy,
Gore v. United States, 357 U.S. 386, 393,
78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), our
2253
cases have cautioned against using the

aegis of the Cruel and Unusual Punishment Clause to cut off the normal democratic processes, Gregg, supra, at 176, 96
S.Ct. 2909 (quoting Powell v. Texas, 392
U.S. 514, 533, 88 S.Ct. 2145, 20 L.Ed.2d
1254 (1968) (plurality opinion)).
Our opinions have also recognized that
data concerning the actions of sentencing
juries, though entitled to less weight than
legislative judgments, is a significant and
reliable objective index of contemporary
values, Coker v. Georgia, 433 U.S. 584,
596, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)
(plurality opinion) (quoting Gregg, supra,
at 181, 96 S.Ct. 2909), because of the jurys
intimate involvement in the case and its
function of maintain[ing] a link between
contemporary community values and the
penal system, Gregg, supra, at 181, 96
S.Ct. 2909 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968)). In Coker,
supra, at 596597, 97 S.Ct. 2861, for example, we credited data showing that at
least 9 out of 10 juries in Georgia did not
impose the death sentence for rape convictions. And in Enmund v. Florida, 458
U.S. 782, 793794, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), where evidence of the
current legislative judgment was not as
compelling as that in Coker (but more so
than that here), we were persuaded by
overwhelming [evidence] that American
juries TTT repudiated imposition of the
death penalty for a defendant who neither
took life nor attempted or intended to take
life.
S 324In my view, these two sourcesthe
work product of legislatures and sentencing jury determinationsought to be the
sole indicators by which courts ascertain
the contemporary American conceptions of
decency for purposes of the Eighth
Amendment. They are the only objective
indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled
with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design,
2254
better suited than courts to evaluating and

giving effect to the complex societal and
moral considerations that inform the selection of publicly acceptable criminal punishments.
536 U.S. 324
countries could serve to establish the first

Eighth Amendment prerequisite, that [a]
practice is accepted among our people.
Stanford, 492 U.S., at 369, n. 1, 109 S.Ct.
2969 (emphasizing that American conceptions of decency TTT are dispositive (emphasis in original)).
In reaching its conclusion today, the

Court does not take notice of the fact that
neither petitioner nor his amici have adduced any comprehensive statistics that
would conclusively prove (or disprove)
whether juries routinely consider death a
disproportionate punishment for mentally
retarded offenders like petitioner.* Instead, it adverts to the fact that other
countries have disapproved imposition of
the death penalty for crimes committed by
mentally retarded offenders, see ante, at
22492250, n. 21 (citing the Brief for European Union as Amicus Curiae 2). I fail to
see, howSever,325 how the views of other
countries regarding the punishment of
their citizens provide any support for the
Courts ultimate determination. While it
is true that some of our prior opinions
have looked to the climate of international
opinion, Coker, supra, at 596, n. 10, 97
S.Ct. 2861, to reinforce a conclusion regarding evolving standards of decency, see
Thompson v. Oklahoma, 487 U.S. 815, 830,
108 S.Ct. 2687, 101 L.Ed.2d 702 (1988)
(plurality opinion); Enmund, supra, at
796797, n. 22, 102 S.Ct. 3368; Trop v.
Dulles, 356 U.S. 86, 102103, 78 S.Ct. 590,
2 L.Ed.2d 630 (1958) (plurality opinion);
we have since explicitly rejected the idea
that the sentencing practices of other
To further buttress its appraisal of

contemporary societal values, the Court
marshals public opinion poll results and
evidence that several professional organizations and religious groups have adopted
official positions opposing the imposition
of the death penalty upon mentally retarded offenders. See ante, at 2249
2250, n. 21 (citing Brief for American
Psychological Association et al. as Amici
Curiae; Brief for American Association
on Mental Retardation et al. as Amici
Curiae; noting that representatives of
widely diverse reliSgious326 communities
* Apparently no such statistics exist. See Brief

for American Association on Mental Retardation et al. as Amici Curiae 19, n. 29 (noting
that actions by individual prosecutors and by
juries are difficult to quantify with precision). Petitioners inability to muster studies
in his favor ought to cut against him, for it is
his heavy burden, Stanford v. Kentucky, 492
U.S. 361, 373, 109 S.Ct. 2969, 106 L.Ed.2d
306 (1989) (internal quotation marks omitted), to establish a national consensus against
a punishment deemed acceptable by the Virginia Legislature and jury who sentenced
him. Furthermore, it is worth noting that

experts have estimated that as many as 10
percent of death row inmates are mentally
retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N.Y. Times, Aug. 7, 2000, p. A1, a
number which suggests that sentencing juries
are not as reluctant to impose the death penalty on defendants like petitioner as was the
case in Coker v. Georgia, 433 U.S. 584, 97
S.Ct. 2861, 53 L.Ed.2d 982 (1977), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982).
Stanfords reasoning makes perfectly

good sense, and the Court offers no basis
to question it. For if it is evidence of a
national consensus for which we are looking, then the viewpoints of other countries
simply are not relevant. And nothing in
Thompson, Enmund, Coker, or Trop suggests otherwise. Thompson, Enmund,
and Coker rely only on the bare citation of
international laws by the Trop plurality as
authority to deem other countries sentencing choices germane. But the Trop pluralityrepresenting the view of only a minority of the Courtoffered no explanation
for its own citation, and there is no reason
to resurrect this view given our sound
rejection of the argument in Stanford.
536 U.S. 327
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
TTT reflecting Christian, Jewish, Muslim,

and Buddhist traditions TTT share a conviction that the execution of persons with
mental retardation cannot be morally justified ; and stating that polling data
shows a widespread consensus among
Americans TTT that executing the mentally retarded is wrong). In my view,
none should be accorded any weight on
the Eighth Amendment scale when the
elected representatives of a States populace have not deemed them persuasive
enough to prompt legislative action. In
Penry, 492 U.S., at 334335, 109 S.Ct.
2934, we were cited similar data and declined to take them into consideration
where the public sentiment expressed in
[them] had yet to find expression in
state law. See also Stanford, 492 U.S.,
at 377, 109 S.Ct. 2969 (plurality opinion)
(refusing the invitation to rest constitutional law upon such uncertain foundations as public opinion polls, the views
of interest groups, and the positions
adopted by various professional associations). For the Court to rely on such
data today serves only to illustrate its
willingness to proscribe by judicial fiat
at the behest of private organizations
speaking only for themselvesa punishment about which no across-the-board
consensus has developed through the
workings of normal democratic processes
in the laboratories of the States.
Even if I were to accept the legitimacy
of the Courts decision to reach beyond the
product of legislatures and practices of
sentencing juries to discern a national
standard of decency, I would take issue
with the blind-faith credence it accords the
opinion polls brought to our attention. An
extensive body of social science literature
describes how methodological and other
errors can affect the reliability and validity
of estimates about the opinions and attitudes of a population derived from various
sampling techniques. Everything from
variations in the survey methodology, such
as the choice of the target population, the
sampling design used, the questions asked,
2255
and the statistical analyses used to interpret the data can skew the results. See,
e.g., R. Groves, Survey S 327Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena
(1984).
The Federal Judicial Centers Reference
Manual on Scientific Evidence 221271
(1994) and its Manual for Complex Litigation 21.493, pp. 101103 (3d ed.1995),
offer helpful suggestions to judges called
upon to assess the weight and admissibility
of survey evidence on a factual issue before a court. Looking at the polling data
(reproduced in the Appendix to this opinion) in light of these factors, one cannot
help but observe how unlikely it is that the
data could support a valid inference about
the question presented by this case. For
example, the questions reported to have
been asked in the various polls do not
appear designed to gauge whether the respondents might find the death penalty an
acceptable punishment for mentally retarded offenders in rare cases. Most are
categorical (e.g., Do you think that persons convicted of murder who are mentally
retarded should or should not receive the
death penalty?), and, as such, would not
elicit whether the respondent might agree
or disagree that all mentally retarded people by definition can never act with the
level of culpability associated with the
death penalty, regardless of the severity of
their impairment or the individual circumstances of their crime. Second, none of
the 27 polls cited disclose the targeted
survey population or the sampling techniques used by those who conducted the
research. Thus, even if one accepts that
the survey instruments were adequately
designed to address a relevant question, it
is impossible to know whether the sample
was representative enough or the methodology sufficiently sound to tell us anything
about the opinions of the citizens of a
particular State or the American public at
large. Finally, the information provided to
us does not indicate why a particular survey was conducted or, in a few cases, by
whom, factors which also can bear on the
2256
objectivity of the results. In order to be

credited here, such surveys should be offered as S 328evidence at trial, where their
sponsors can be examined and cross-examined about these matters.
*
There are strong reasons for limiting

our inquiry into what constitutes an evolving standard of decency under the Eighth
Amendment to the laws passed by legislatures and the practices of sentencing juries
536 U.S. 327
in America. Here, the Court goes beyond

these well-established objective indicators
of contemporary values. It finds further
support to [its] conclusion that a national
consensus has developed against imposing
the death penalty on all mentally retarded
defendants in international opinion, the
views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante, at 22492250, n.
21. Believing this view to be seriously
mistaken, I dissent.
APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et
al. as Amici Curiae in 3a7a, and cited by the Court, ante, at 22492250, n. 21:
STATE
POLL
DATE
RESPONSE
QUESTION
AR
Arkansans Opinion on the

Death Penalty, Opinion Research Associates, Inc., Q. 13
(July 1992)
1992
61% never appropriate

17% is appropriate
5% opposed to all
executions
17% undecided
Some people say that there is nothing wrong with executing a person
who is mentally retarded. Others say
that the death penalty should never
be imposed on a person who is mentally retarded. Which of these positions comes closest to your own?
John DiPippa, Will Fairchilds

Death Violate the Constitution, or Simply Our Morality?,
Arkansas Forum, Sept. 1993
S 329AZ
Behavior Research Center,

Survey 2000, Q. 3 (July 2000)
2000
71% oppose
12% favor
11% depends
6% ref/unsure
For persons convicted of murder, do

you favor or oppose use of the death
penalty when the defendant is mentally retarded?
CA
Field Research Corp., California Death Penalty Survey, Q.

22 (Dec.1989)
1989
64.8% not all right

25.7% is all right
9.5% no opinion
Some people feel there is nothing

wrong with imposing the death penalty on persons who are mentally
retarded depending on the circumstances. Others feel the death penalty should never be imposed on
persons who are mentally retarded
under any circumstance. The death
penalty on a mentally retarded person is TTT ?
1997
74% disagree
17% agree
9% no opinion
Mentally retarded defendants should

be given the death penalty when they
commit capital crimes.
Frank Hill, Death Penalty For

The Retarded, San Diego UnionTribune, Mar. 28, 1993, at
G3
CA
Field Research Corp., California Death Penalty Survey, Q.

62D (Dec.1997)
Paul Van Slambrouck, Execution and a Convicts Mental
State, The Christian Science
Monitor, Apr. 27, 1998, at 1
CT
Quinnipac University
S 330Polling Institute, Death
Penalty Survey Info., Q. 35
(April 23, 2001)
2001
77% no
12% yes
11% dont know
Do you think that persons convicted

of murder who are mentally retarded
should or should not receive the death
penalty?
FL
Amnesty International
1986
71% opposed
[not provided]
Martin Dyckman, Death Penaltys High Price, St. Petersburg Times, Apr. 19, 1992, at
3D
2257
ATKINS v. VIRGINIA
536 U.S. 333
Cite as 122 S.Ct. 2242 (2002)
APPENDIX TO OPINION OF REHNQUIST, C. J.Continued

STATE
GA
POLL
Georgia State University
DATE
1987
Tracy Thompson, Executions

of Retarded Opposed, Atlanta
Journal, Jan. 6, 1987, at 1B
RESPONSE
66% opposed
17% favor
16% depends
QUESTION
[not provided]
LA
Marketing Research Inst.,

1993
Loyola Death Penalty Survey,
Q. 7 (Feb.1993)
77.7% no
9.2% yes
13% uncertain
Would you vote for the death penalty

if the convicted person is mentally
retarded?
LA
Louisiana Poll, Poll 104, Q. 9

(Apr.2001)
68% no
19% yes
11% no opinion
2% wont say
Do you believe mentally retarded

people, who are convicted of capital
murder, should be executed?
MD
Survey Research Center, Uni- 1988

versity of Maryland (Nov.1988)
82% opposed
8% favor
10% other
Would you favor or oppose the death

penalty for a person convicted of murder if he or she is mentally retarded?
S 331MO
Missouri Mental Retardation

1993
and Death Penalty Survey, Q.
5 (Oct.1993)
61.3% not all right

23.7% is all right
15% dont know
Some people feel there is nothing

wrong with imposing the death penalty on persons who are mentally retarded depending on the circumstances. Others feel that the death
penalty should never be imposed on
under any circumstances. Do you
think it IS or IS NOT all right to
impose the death penalty on a mentally retarded person?
NC/SC
Charlotte ObserverWMTV
News Poll (Sept.2000)
2000
64% yes
21% no
14% not sure
Should the Carolinas ban the execution of people with mental retardation?
2001
Diane Suchetka, Carolinas

Join Emotional Debate Over
Executing Mentally Retarded,
Charlotte Observer, Sept. 13,
2000
NM
Research & Polling Inc., Use

of the Death Penalty Public
Opinion Poll, Q. 2 (Dec.1990)
1990
57.1% oppose
10.5% support
26.2% depends
6.1% dont know
62% support the death penalty.

Asked of those that support it, for
which of the following do you support
use of the S 332death penalty TTT when
the convicted person is mentally retarded?
NY
Patrick Caddell Enterprises,

N.Y. Public Opinion Poll, The
Death Penalty: An Executive
Summary, Q. 27 (May 1989)
1989
82% oppose
10% favor
9% dont know
Id like you to imagine you are a

member of a jury. The jury has
found the defendant guilty of murder
beyond a reasonable doubt and now
needs to decide about sentencing.
You are the last juror to decide and
your decision will determine whether
or not the offender will receive the
death penalty. Would you favor or
oppose sentencing the offender to the
death penalty if TTT the convicted person were mentally retarded?
Ronald Tabak & J. Mark

Lane, The Execution of Injustice: A Cost and LackofBenefit Analysis of the Death Penalty, 23 Loyola (LA) L.Rev. 59,
93 (1989)
OK
Survey of Oklahoma Attitudes 1999

Regarding Capital Punishment: Survey Conducted for
Oklahoma Indigent Defense
System, Q. C (July 1999)
83.5% should not be

executed
10.8% should be
executed
5.7% depends
Some people think that persons convicted of murder who are mentally
retarded (or have a mental age of
between 5 and 10 years) should not be
executed. Other people think that
retarded persons should be subject
to the death penalty like anyone else.
Which is closer to S 333the way you
feel, that retarded persons should
not be executed, or that retarded
persons should be subject to the
death penalty like everyone else?
TX
Austin American Statesman,

Nov. 15, 1988, at B3
73% opposed
[not provided]
TX
Sam Houston State University, 1995

College of Criminal Justice,
61% more likely to

oppose
For each of the following items that

have been found to affect peoples at-
1988
2258
536 U.S. 333

STATE
POLL
Texas Crime Poll On-line
(1995)
DATE
RESPONSE
QUESTION
titude about the death penalty, please
state if you would be more likely to
favor or more likely to oppose the
death penalty, or wouldnt it matter
TTT if the murderer is severely mentally retarded?
2001
66% no
17% yes
17% dont know/no
answer
Should the state use the death penalty when the inmate is considered
mentally retarded?
2001
59.9% no support
19.3% support
20.7% not sure/no
answer
Would you support the death penalty

if you were convinced the defendant
were guilty, but the defendant is mentally impaired?
1988
71% should not be

executed
21% should be executed
4% depends
3% not sure/refused
Some people think that persons convicted of murder who have a mental
age of less than 18 (or the retarded)
should not be executed. Other people
think that retarded persons should
be subject to the death penalty like
anyone else. Which is closer to the
way you feel, that retarded persons
should not be executed, or that retarded persons should be subject to
the death penalty like anyone else?
1989
61% oppose
27% favor
12% not sure
Do you favor or oppose the death

penalty for mentally retarded individuals convicted of serious crimes, such
as murder?
56% not all right

32% is all right
11% unsure
Some people feel that there is nothing wrong with imposing the death
penalty on persons who are mentally
retarded, depending on the circumstances. Others feel that the death
penalty should never be imposed on
under any circumstances. Which of
these views comes closest to your
own?
For each item please tell me if you
would be more likely to favor the
death penalty, more likely to oppose
the death S 336penalty or it wouldnt
matter TTT if it is true that the murderer is severely mentally retarded?
Domingo Ramirez, Jr., Murder

Trial May Hinge on Defendants IQ, The Fort Worth
StarTelegram, Oct. 6, 1997, at
1
TX
ScrippsHoward Texas Poll:

Death Penalty (Mar.2001)
Dan Parker, Most Texans
Support Death Penalty, Corpus Christi CallerTimes, Mar.
2, 2001, at A1
S 334TX
Houston Chronicle (Feb.2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction:
Part III, Debate Fervent in
Mental Cases, Johnny Paul
Penry Illustrates a Lingering
Capital Conundrum, The
Houston Chronicle, Feb. 6,
2001, at A6
US
Harris Poll, Unfinished Agenda on Race, Q. 32 (Sept.1988)

Saundra Torry, High Court to
Hear Case on Retarded Slayer, The Washington Post, Jan.
11, 1989, at A6
S 335US
Yankelovich Clancy Shulman,

Time/CNN Poll, Q. 14 (July 7,
1989)
Samuel R. Gross, Second
Thoughts: Americans Views
on the Death Penalty at the
Turn of the Century, Capital
Punishment and the American
Future (Feb.2001)
US
The Tarrance Group, Death

1993
Penalty Poll, Q. 9 (Mar.1993)
Samuel R. Gross, Update:
American Public Opinion on
the Death PenaltyIts Getting
Personal, 83 Cornell L.Rev.
1448, 1467 (1998)
US
Public Policy Research, Crime 1995

in America, Q. 72 (July 1995)
67% likely to oppose

7% likely to favor
26% wouldnt matter
US
Princeton Research, Newsweek Poll, Q. 16 (Nov.1995)
83% oppose
If the convicted person was TTT men9% favor
tally retarded, would you favor or op8% dont know refused pose the death penalty?
Samuel R. Gross, Update:

American Public Opinion on
the Death PenaltyIts Getting Personal, 83 Cornell
L.Rev. 1448, 1468 (1998)
1995
2259
ATKINS v. VIRGINIA
536 U.S. 338
Cite as 122 S.Ct. 2242 (2002)

STATE
POLL
DATE
RESPONSE
QUESTION
US
Peter Hart Research Associates, Inc., Innocence Survey,

Q. 12 (Dec.1999)
1999
58% strongly/somewhat
favor
26% strongly/somewhat
oppose
12% mixed/neutral
4% not sure
TTT [F]or each proposal I read,

please tell me whether you strongly
favor, somewhat favor, have mixed or
neutral feelings, somewhat oppose, or
strongly oppose that proposal TTTT
[P]rohibit the death penalty for defendants who are mentally retarded.
US
Peter Hart Research Associates, Inc., Innocence Survey,

Q. 9 (Dec.1999)
1999
72% much/somewhat
less likely
19% no difference
9% not sure
Suppose you were on a jury and a

defendant was convicted of murder.
Now it is time to determine the sentence. If you knew that the
S 337defendant was mentally retarded
or otherwise mentally impaired in a
serious way, would you be much less
likely to support the use of the death
penalty in this specific case, somewhat
less likely, or would it make no difference to you?
47% much less likely

25% somewhat less
likely
US
Houston Chronicle (Feb.2001)

Stephen Brewer & Mike Tolson, A Deadly Distinction:
Part III, Debate Fervent in
Mental Cases, Johnny Paul
Penry Illustrates a Lingering
Capital Conundrum, The
Houston Chronicle, Feb. 6,
2001, at A6
2001
63.8% no support
16.4% support
19.8% not sure/no
answer
Justice SCALIA, with whom THE

CHIEF JUSTICE and Justice THOMAS
join, dissenting.
Todays decision is the pinnacle of our
Eighth Amendment death-is-different jurisprudence. Not only does it, like all of
that jurisprudence, find no support in the
text or history of the Eighth Amendment;
it does not even have support in current
social attitudes regarding the conditions
that render S 338an otherwise just death
penalty inappropriate. Seldom has an
opinion of this Court rested so obviously
upon nothing but the personal views of its
Members.
I
I begin with a brief restatement of facts
that are abridged by the Court but important to understanding this case. After
spending the day drinking alcohol and
smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove
to a convenience store, intending to rob a
customer. Their victim was Eric Nesbitt,
Would you support the death penalty

if you were convinced the defendant
were guilty, but the defendant is mentally impaired?
an airman from Langley Air Force Base,

whom they abducted, drove to a nearby
automated teller machine, and forced to
withdraw $200. They then drove him to a
deserted area, ignoring his pleas to leave
him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of
the vehicle and, after he had taken only a
few steps, shot him one, two, three, four,
five, six, seven, eight times in the thorax,
chest, abdomen, arms, and legs.
The jury convicted Atkins of capital
murder. At resentencing (the Virginia Supreme Court affirmed his conviction but
remanded for resentencing because the trial court had used an improper verdict
form, 257 Va. 160, 179, 510 S.E.2d 445, 457
(1999)), the jury heard extensive evidence
of petitioners alleged mental retardation.
A psychologist testified that petitioner was
mildly mentally retarded with an IQ of 59,
that he was a slow learner, App. 444,
who showed a lack of success in pretty
much every domain of his life, id., at 442,
and that he had an impaired capacity to
2260
appreciate the criminality of his conduct

and to conform his conduct to the law, id.,
at 453. Petitioners family members offered additional evidence in support of his
mental retardation claim (e.g., that petitioner is a follower, id., at 421). The
Commonwealth contested the evidence of
retardation and presented testimony of a
psychologist who found absolutely no evidence other than the IQ score TTT indicating that [petiStioner]339 was in the least bit
mentally retarded and concluded that petitioner was of average intelligence, at
least. Id., at 476.
The jury also heard testimony about
petitioners 16 prior felony convictions for
robbery, attempted robbery, abduction,
use of a firearm, and maiming. Id., at
491522. The victims of these offenses
provided graphic depictions of petitioners
violent tendencies: He hit one over the
head with a beer bottle, id., at 406; he
slapped a gun across another victims face,
clubbed her in the head with it, knocked
her to the ground, and then helped her up,
only to shoot her in the stomach, id., at
411413. The jury sentenced petitioner to
death. The Supreme Court of Virginia
affirmed petitioners sentence. 260 Va.
375, 534 S.E.2d 312 (2000).
II
As the foregoing history demonstrates,
petitioners mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt
him from the death penalty in light of the
brutality of his crime and his long demonstrated propensity for violence. In upsetting this particularized judgment on the
basis of a constitutional absolute, the
Court concludes that no one who is even
slightly mentally retarded can have sufficient moral responsibility to be subjected
to capital punishment for any crime. As a
sociological and moral conclusion that is
implausible; and it is doubly implausible
as an interpretation of the United States
Constitution. Thompson v. Oklahoma,
536 U.S. 338
487 U.S. 815, 863864, 108 S.Ct. 2687, 101

L.Ed.2d 702 (1988) (SCALIA, J., dissenting).
Under our Eighth Amendment jurisprudence, a punishment is cruel and unusual
if it falls within one of two categories:
those modes or acts of punishment that
had been considered cruel and unusual at
the time that the Bill of Rights was
adopted, Ford v. Wainwright, 477 U.S.
399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986), and modes of punishment that are
inconsistent with S 340modern standards of
decency, as evinced by objective indicia,
the most important of which is legislation
enacted by the countrys legislatures,
Penry v. Lynaugh, 492 U.S. 302, 330331,
109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
The Court makes no pretense that execution of the mildly mentally retarded
would have been considered cruel and
unusual in 1791. Only the severely or
profoundly mentally retarded, commonly
known as idiots, enjoyed any special status under the law at that time. They, like
lunatics, suffered a deficiency in will rendering them unable to tell right from
wrong. 4 W. Blackstone, Commentaries
on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492
U.S., at 331332, 109 S.Ct. 2934 ([T]he
term idiot was generally used to describe
persons who had a total lack of reason or
understanding, or an inability to distinguish between good and evil); id., at 333,
109 S.Ct. 2934 (citing sources indicating
that idiots generally had an IQ of 25 or
below, which would place them within the
profound or severe range of mental
retardation under modern standards); 2 A.
FitzHerbert, Natura Brevium 233B (9th
ed. 1794) (originally published 1534) (An
idiot is such a person who cannot account
or number twenty pence, nor can tell who
was his father or mother, nor how old he
is, etc., so as it may appear that he hath no
understanding of reason what shall be for
his profit, or what for his loss). Due to
their incompetence, idiots were excuse[d]
ATKINS v. VIRGINIA
536 U.S. 342
Cite as 122 S.Ct. 2242 (2002)
from the guilt, and of course from the

punishment, of any criminal action committed under such deprivation of the senses.
4 Blackstone 25; see also Penry, supra, at
331, 109 S.Ct. 2934. Instead, they were
often committed to civil confinement or
made wards of the State, thereby preventing them from go[ing] loose, to the terror
of the kings subjects. 4 Blackstone 25;
see also S. Brakel, J. Parry, & B. Weiner,
The Mentally Disabled and the Law 1214
(3d ed.1985); 1 Blackstone 292296; 1 M.
Hale, Pleas of the Crown 33 (1st Am. ed.
1847). Mentally retarded offenders with
less severe impairmentsthose who were
not idiotssuffered criminal prosecution
S 341and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 8792 (W. Overholser ed.1962) (recounting the 1834 trial
and execution in Concord, New Hampshire, of an apparent imbecileimbecility being a less severe form of retardation
which differs from idiocy in the circumstance that while in [the idiot] there is an
utter destitution of every thing like reason,
[imbeciles] possess some intellectual capacity, though infinitely less than is possessed
by the great mass of mankind); A. Highmore, Law of Idiocy and Lunacy 200
(1807) (The great difficulty in all these
cases, is to determine where a person shall
be said to be so far deprived of his sense
and memory as not to have any of his
actions imputed to him: or where notwithstanding some defects of this kind he still
appears to have so much reason and understanding as will make him accountable
for his actions TTT).
The Court is left to argue, therefore,
that execution of the mildly retarded is
inconsistent with the evolving standards
of decency that mark the progress of a
maturing society. Trop v. Dulles, 356
U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630
(1958) (plurality opinion) (Warren, C. J.).
Before today, our opinions consistently
emphasized that Eighth Amendment judg1.
See
Ariz.Rev.Stat.
Ann.
13703.02(I)
2261
ments regarding the existence of social

standards should be informed by objective factors to the maximum possible extent and should not be, or appear to be,
merely the subjective views of individual
Justices. Coker v. Georgia, 433 U.S. 584,
592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)
(plurality opinion); see also Stanford v.
Kentucky, 492 U.S. 361, 369, 109 S.Ct.
2969, 106 L.Ed.2d 306 (1989); McCleskey
v. Kemp, 481 U.S. 279, 300, 107 S.Ct. 1756,
95 L.Ed.2d 262 (1987); Enmund v. Florida, 458 U.S. 782, 788, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982). First among these
objective factors are the statutes passed
by societys elected representatives, Stanford v. Kentucky, supra, at 370, 109 S.Ct.
2969; because it will rarely if ever be the
case that the Members of this Court will
have a better sense of the evolution in
views of the American people than do their
elected representatives, Thompson, supra, at 865, 108 S.Ct. 2687 (SCALIA, J.,
dissenting).
S 342The Court pays lipservice to these
precedents as it miraculously extracts a
national consensus forbidding execution
of the mentally retarded, ante, at 2250,
from the fact that 18 Statesless than
half (47%) of the 38 States that permit
capital punishment (for whom the issue
exists)have very recently enacted legislation barring execution of the mentally
retarded. Even that 47% figure is a distorted one. If one is to say, as the Court
does today, that all executions of the
mentally retarded are so morally repugnant as to violate our national standards
of decency, surely the consensus it
points to must be one that has set its
righteous face against all such executions.
Not 18 States, but only 718% of death
penalty jurisdictionshave legislation of
that scope. Eleven of those that the
Court counts enacted statutes prohibiting
execution of mentally retarded defendants
convicted after, or convicted of crimes
committed after, the effective date of the
legislation; 1 those already on death row,
(Supp.2001); Ark.Code Ann. 54618(d)(1)
2262
or consigned there before the statutes effective date, or even (in those States using the date of the crime as the criterion
of retroactivity) tried in the future for
murders committed many years ago, could
be put to death. That is not a statement
of absolute moral repugnance, but one of
current preference between two tolerable
approaches. Two of these States permit
execution of the mentally retarded in other situations as well: Kansas apparently
permits execution of all S 343except the severely mentally retarded; 2New York permits execution of the mentally retarded
who commit murder in a correctional facility.
N.Y.Crim.
Proc.
Law
400.27.12(d) (McKinney 2001); N.Y. Penal Law 125.27 (McKinney 2002).
But let us accept, for the sake of argument, the Courts faulty count. That bare
number of States alone18should be
enough to convince any reasonable person
that no national consensus exists. How
is it possible that agreement among 47% of
the death penalty jurisdictions amounts to
consensus? Our prior cases have generally required a much higher degree of
agreement before finding a punishment
cruel and unusual on evolving standards
grounds. In Coker, supra, at 595596, 97
S.Ct. 2861, we proscribed the death penalty for rape of an adult woman after finding
that only one jurisdiction, Georgia, authorized such a punishment. In Enmund, supra, at 789, 102 S.Ct. 3368, we invalidated
the death penalty for mere participation in
a robbery in which an accomplice took a

life, a punishment not permitted in 28 of
the death penalty States (78%). In Ford,
477 U.S., at 408, 106 S.Ct. 2595, we supported the common-law prohibition of execution of the insane with the observation
that [t]his ancestral legacy has not outlived its time, since not a single State
authorizes such punishment. In Solem v.
Helm, 463 U.S. 277, 300, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983), we invalidated a life
sentence without parole under a recidivist
statute by which the criminal was treated
more severely than he would have been in
any other State. What the Court calls
evidence of consensus in the present
case (a fudged 47%) more closely resembles evidence that we found inadequate
S 344to establish consensus in earlier cases.
Tison v. Arizona, 481 U.S. 137, 154, 158,
107 S.Ct. 1676, 95 L.Ed.2d 127 (1987),
upheld a state law authorizing capital punishment for major participation in a felony
with reckless indifference to life where
only 11 of the 37 death penalty States
(30%) prohibited such punishment. Stanford, 492 U.S., at 372, 109 S.Ct. 2969,
upheld a state law permitting execution of
defendants who committed a capital crime
at age 16 where only 15 of the 36 death
penalty States (42%) prohibited death for
such offenders.
Moreover, a major factor that the Court
entirely disregards is that the legislation of
all 18 States it relies on is still in its
infancy. The oldest of the statutes is only
14 years old; 3 five were enacted last
eral intellectual functioning TTT to an extent
which substantially impairs ones capacity to
appreciate the criminality of ones conduct or
to conform ones conduct to the requirements
of law.
Kan. Stat. Ann. 214623(e)
(2001). This definition of retardation, petitioner concedes, is analogous to the Model
Penal Codes definition of a mental disease
or defect excusing responsibility for criminal
conduct, see ALI, Model Penal Code 4.01
(1985), which would not include mild mental
retardation. Reply Brief for Petitioner 3, n.
4.
(1997); Reams v. State, 322 Ark. 336, 340,

909 S.W.2d 324, 326327 (1995); Fla. Stat.
921.137(8) (Supp.2002); Ga.Code Ann.
177131(j) (1997); Ind.Code 353696
(1998); Rondon v. State, 711 N.E.2d 506, 512
(Ind.1999); Kan. Stat. Ann. 214623(d),
214631(c)
(1995);
Ky.Rev.Stat.
Ann.
532.140(3) (1999); Md. Ann.Code, Art. 27,
412(g) (1996); Booth v. State, 327 Md. 142,
166167, 608 A.2d 162, 174 (1992); Mo.Rev.
Stat. 565.030(7) (Supp.2001); N.Y.Crim.
Proc. Law 400.27.12(c) (McKinney Supp.
2002); 1995 N.Y. Laws, ch. 1, 38; Tenn.
Code Ann. 3913203(b) (1997); Van Tran
v. State, 66 S.W.3d 790, 798799 (Tenn.2001).
2.
The Kansas statute defines mentally retarded as having significantly subaverage gen-
536 U.S. 342
3.
Ga.Code Ann. 177131(j).
536 U.S. 346
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
year; 4 over half were enacted within the

past eight years.5 Few, if any, of the
States have had sufficient experience with
these laws to know whether they are sensible in the long term. It is myopic to base
sweeping constitutional principles upon the
narrow experience of [a few] years. Coker, 433 U.S., at 614, 97 S.Ct. 2861 (Burger,
C. J., dissenting); see also Thompson, 487
U.S., at 854855, 108 S.Ct. 2687 (OCONNOR, J., concurring in judgment).
2263
The Court attempts to bolster its embarrassingly feeble evidence of consensus with the following: It is not so much
the number of these States that is significant, but the consistency of the direction
of change. Ante, at 2249 (emphasis added). But in what other direction could we
possibly see change? Given that 14 years
ago all the death penalty statutes included
the mentally retarded, any change (except
precipitate undoing of what had just been
done) was bound S 345to be in the one direction the Court finds significant enough
to overcome the lack of real consensus.
That is to say, to be accurate the Courts
consistency-of-the-direction-of-change
point should be recast into the following
unimpressive observation: No State has
yet undone its exemption of the mentally
retarded, one for as long as 14 whole
years. In any event, reliance upon
trends, even those of much longer duration than a mere 14 years, is a perilous
basis for constitutional adjudication, as
Justice OCONNOR eloquently explained
in Thompson:
In 1846, Michigan became the first
State to abolish the death penalty TTT.
In succeeding decades, other American
States continued the trend towards abolition TTT. Later, and particularly after
World War II, there ensued a steady
and dramatic decline in executions TTT.
In the 1950s and 1960s, more States
abolished or radically restricted capital

punishment, and executions ceased completely for several years beginning in
1968 TTT.
In 1972, when this Court heard arguments on the constitutionality of the
death penalty, such statistics might have
suggested that the practice had become
a relic, implicitly rejected by a new societal consensusTTTT We now know that
any inference of a societal consensus
rejecting the death penalty would have
been mistaken. But had this Court then
declared the existence of such a consensus, and outlawed capital punishment,
legislatures would very likely not have
been able to revive it. The mistaken
premise of the decision would have been
frozen into constitutional law, making it
difficult to refute and even more difficult
to reject. 487 U.S., at 854855, 108
S.Ct. 2687.
Her words demonstrate, of course, not
merely the peril of riding a trend, but also
the peril of discerning a consensus where
there is none.
S 346The Courts thrashing about for evidence of consensus includes reliance
upon the margins by which state legislatures have enacted bans on execution of
the retarded. Ante, at 2249. Presumably,
in applying our Eighth Amendment evolving-standards-of-decency jurisprudence,
we will henceforth weigh not only how
many States have agreed, but how many
States have agreed by how much. Of
course if the percentage of legislators voting for the bill is significant, surely the
number of people represented by the legislators voting for the bill is also significant:
the fact that 49% of the legislators in a
State with a population of 60 million voted
against the bill should be more impressive
than the fact that 90% of the legislators in
4.
Ariz.Rev.Stat. Ann. 13703.02; Conn.

Gen.Stat. 53a46a(h); Fla. Stat. 921.137;
Mo.Rev.Stat. 565.030(4)-(7); N.C. Gen.
Stat. 15A2005.
acted 2000); Neb.Rev.Stat. 28105.01(2)

(5) (1998); N.Y.Crim. Proc. Law 400.27(12)
(1995); Ind.Code 353696 (1994); Kan.
Stat. Ann. 214623 (1994).
5.
In addition to the statutes cited n. 4 supra,

see S.D. Codified Laws 23A27A26.1 (en-
2264
a State with a population of 2 million voted

for it. (By the way, the population of the
death penalty States that exclude the mentally retarded is only 44% of the population
of all death penalty States. U.S. Dept. of
Commerce, Bureau of Census, Statistical
Abstract of the United States 21 (121st
ed.2001).) This is quite absurd. What we
have looked for in the past to evolve the
Eighth Amendment is a consensus of the
same sort as the consensus that adopted
the Eighth Amendment: a consensus of
the sovereign States that form the Union,
not a nose count of Americans for and
against.
536 U.S. 346
tion et al. as Amici Curiae 7; then surely

the explanation is that mental retardation
is a constitutionally mandated mitigating
factor at sentencing, Penry, 492 U.S., at
328, 109 S.Ct. 2934. For that reason, even
if there were uniform national sentiment in
favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be uncommon. To adapt to the present case
what the Court itself said in Stanford, 492
U.S., at 374, 109 S.Ct. 2969: [I]t is not
only possible, but overwhelmingly probable, that the very considerations which induce [todays majority] to believe that
death should never be imposed on [mentally retarded] offenders TTT cause prosecutors and juries to believe that it should
rarely be imposed.
Even less compelling (if possible) is the

Courts argument, ibid., that evidence of
national consensus is to be found in the
infrequency with which retarded persons
are executed in States that do not bar
their execution. To begin with, what the
Court takes as true is in fact quite doubtful. It is not at all clear that execution of
the mentally retarded is uncommon,
ibid., as even the sources cited by the
Court suggest, see ante, at 2249, n. 20
(citing D. Keyes, W. Edwards, & R.
Perske, People with Mental Retardation
are Dying Legally, 35 Mental Retardation
(Feb.1997) (updated by Death Penalty Information
Center,
available
at
http://www.advocacyone.org/ deathpenalty.html (as visited S 347June 12, 2002) (showing that 12 States executed 35 allegedly
mentally retarded offenders during the period 19842000)). See also Bonner & Rimer, Executing the Mentally Retarded Even
as Laws Begin to Shift, N.Y. Times, Aug.
7, 2000, p. A1 (reporting that 10% of death
row inmates are retarded). If, however,
execution of the mentally retarded is uncommon; and if it is not a sufficient explanation of this that the retarded constitute a tiny fraction of society (1% to 3%),
Brief for American Psychological Associa-
But the Prize for the Courts Most Feeble Effort to fabricate national consensus
must go to its appeal (deservedly relegated
to a footnote) to the views of assorted
professional and religious organizations,
members of the so-called world community, and respondents to opinion polls.
Ante, at 22492250, n. 21. I agree with
THE CHIEF JUSTICE, ante, at 2254
2256 (dissenting opinion), that the views of
professional and religious organizations
and the results of opinion polls are irrelevant.6 Equally irrelevant are the practices
of the S 348world community, whose notions of justice are (thankfully) not always
those of our people. We must never forget that it is a Constitution for the United
States of America that we are expounding.
TTT [W]here there is not first a settled
consensus among our own people, the
views of other nations, however enlightened the Justices of this Court may think
them to be, cannot be imposed upon Americans through the Constitution. Thomp-
And in some cases positively counterindicative. The Court cites, for example, the views
of the United States Catholic Conference,
whose members are the active Catholic Bishops of the United States. See ante, at 2249
2250, n. 21 (citing Brief for United States
Catholic Conference et al. as Amici Curiae 2).

The attitudes of that body regarding crime
and punishment are so far from being representative, even of the views of Catholics, that
they are currently the object of intense national (and entirely ecumenical) criticism.
6.
536 U.S. 350
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
son, 487 U.S., at 868869, n. 4, 108 S.Ct.

2687 (SCALIA, J., dissenting).
III
Beyond the empty talk of a national
consensus, the Court gives us a brief
glimpse of what really underlies todays
decision: pretension to a power confined
neither by the moral sentiments originally
enshrined in the Eighth Amendment (its
original meaning) nor even by the current
moral sentiments of the American people.
[T]he Constitution, the Court says,
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.
Ante, at 2247 (quoting Coker, 433 U.S., at
597, 97 S.Ct. 2861) (emphasis added).
(The unexpressed reason for this unexpressed contemplation of the Constitution is presumably that really good lawyers have moral sentiments superior to
those of the common herd, whether in
1791 or today.) The arrogance of this
assumption of power takes ones breath
away. And it explains, of course, why the
Court can be so cavalier about the evidence of consensus. It is just a game,
after all. [I]n the end, Thompson,
supra, at 823, n. 8 (plurality opinion (quoting Coker, supra, at 597 (plurality opinion))), it is the feelings and intuition of a
majority of the Justices that countthe
perceptions of decency, or of penology, or
of mercy, entertained TTT by a majority of
the small and S 349unrepresentative segment
of our society that sits on this Court.
Thompson, supra, at 873, 108 S.Ct. 2687
(SCALIA, J., dissenting).
The genuinely operative portion of the
opinion, then, is the Courts statement of
the reasons why it agrees with the contrived consensus it has found, that the
diminished capacities of the mentally retarded render the death penalty excessive.
Ante, at 22502252. The Courts analysis
rests on two fundamental assumptions: (1)
that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account
properly for the diminished capacities of
2265
the retarded. The first assumption is

wrong, as I explained at length in Harmelin v. Michigan, 501 U.S. 957, 966990, 111
S.Ct. 2680, 115 L.Ed.2d 836 (1991) (opinion
of SCALIA, J.). The Eighth Amendment
is addressed to always-and-everywhere
cruel punishments, such as the rack and
the thumbscrew. But where the punishment is in itself permissible, [t]he Eighth
Amendment is not a ratchet, whereby a
temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from
giving effect to altered beliefs and responding to changed social conditions.
Id., at 990, 111 S.Ct. 2680. The second
assumptioninability of judges or juries
to take proper account of mental retardationis not only unsubstantiated, but contradicts the immemorial belief, here and in
England, that they play an indispensable
role in such matters:
[I]t is very difficult to define the indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and
considered both by the judge and jury,
lest on the one side there be a kind of
inhumanity towards the defects of human nature, or on the other side too
great an indulgence given to great
crimes TTT. 1 Hale, Pleas of the
Crown, at 30.
Proceeding from these faulty assumptions, the Court gives two reasons why the
death penalty is an excessive punishment
for all mentally retarded offenders. First,
the diminSished350 capacities of the mentally retarded raise a serious question
whether their execution contributes to the
social purposes of the death penalty, viz.,
retribution and deterrence. Ante, at
22502251. (The Court conveniently ignores a third social purpose of the death
penaltyincapacitation of dangerous
criminals and the consequent prevention of
crimes that they may otherwise commit in
the future, Gregg v. Georgia, 428 U.S.
153, 183, n. 28, 96 S.Ct. 2909, 49 L.Ed.2d
2266
859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). But never mind; its
discussion of even the other two does not
bear analysis.) Retribution is not advanced, the argument goes, because the
mentally retarded are no more culpable
than the average murderer, whom we have
already held lacks sufficient culpability to
warrant the death penalty, see Godfrey v.
Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759,
64 L.Ed.2d 398 (1980) (plurality opinion).
Ante, at 2251. Who says so? Is there an
established correlation between mental
acuity and the ability to conform ones
conduct to the law in such a rudimentary
matter as murder? Are the mentally retarded really more disposed (and hence
more likely) to commit willfully cruel and
serious crime than others? In my experience, the opposite is true: being childlike
generally suggests innocence rather than
brutality.
Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from
murder, what scientific analysis can possibly show that a mildly retarded individual
who commits an exquisite torture-killing is
no more culpable than the average
murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded
individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe
retribution, depends not merely (if at all)
upon the mental capacity of the criminal
(above the level where he is able to distinguish right from wrong) but also upon the
depravity of the crimewhich is precisely
why this sort of question has traditionally
been thought answerable not by a categorical rule of the sort the Court today
S 351imposes upon all trials, but rather by
the sentencers weighing of the circumstances (both degree of retardation and
depravity of crime) in the particular case.
The fact that juries continue to sentence
mentally retarded offenders to death for
extreme crimes shows that societys moral
outrage sometimes demands execution of
536 U.S. 350
retarded offenders. By what principle of

law, science, or logic can the Court pronounce that this is wrong? There is none.
Once the Court admits (as it does) that
mental retardation does not render the
offender morally blameless, ante, at 2250
2251, there is no basis for saying that the
death penalty is never appropriate retribution, no matter how heinous the crime. As
long as a mentally retarded offender
knows the difference between right and
wrong, ante, at 2250, only the sentencer
can assess whether his retardation reduces
his culpability enough to exempt him from
the death penalty for the particular murder in question.
As for the other social purpose of the
death penalty that the Court discusses,
deterrence: That is not advanced, the
Court tells us, because the mentally retarded are less likely than their nonretarded counterparts to process the information of the possibility of execution as
a penalty and TTT control their conduct
based upon that information. Ante, at
2251. Of course this leads to the same
conclusion discussed earlierthat the
mentally retarded (because they are less
deterred) are more likely to killwhich
neither I nor the society at large believes.
In any event, even the Court does not say
that all mentally retarded individuals cannot process the information of the possibility of execution as a penalty and TTT
control their conduct based upon that information; it merely asserts that they are
less likely to be able to do so. But
surely the deterrent effect of a penalty is
adequately vindicated if it successfully deters many, but not all, of the target class.
Virginias death penalty, for example, does
not fail of its deterrent effect simply because some criminals are unaware that
Virginia has the death penalty. In other
words, the supposed fact that some
S 352retarded criminals cannot fully appreciate the death penalty has nothing to do
with the deterrence rationale, but is simply
an echo of the arguments denying a retribution rationale, discussed and rejected
536 U.S. 353
ATKINS v. VIRGINIA
Cite as 122 S.Ct. 2242 (2002)
above. I am not sure that a murderer is

somehow less blameworthy if (though he
knew his act was wrong) he did not fully
appreciate that he could die for it; but if
so, we should treat a mentally retarded
murderer the way we treat an offender
who may be less likely to respond to the
death penalty because he was abused as a
child. We do not hold him immune from
capital punishment, but require his background to be considered by the sentencer
as a mitigating factor. Eddings v. Oklahoma, 455 U.S. 104, 113117, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982).
The Court throws one last factor into its
grab bag of reasons why execution of the
retarded is excessive in all cases: Mentally retarded offenders face a special risk
of wrongful execution because they are
less able to make a persuasive showing of
mitigation, to give meaningful assistance
to their counsel, and to be effective witnesses. Ante, at 2252. Special risk is
pretty flabby language (even flabbier than
less likely)and I suppose a similar
special risk could be said to exist for just
plain stupid people, inarticulate people,
even ugly people. If this unsupported
claim has any substance to it (which I
doubt), it might support a due process
claim in all criminal prosecutions of the
mentally retarded; but it is hard to see
how it has anything to do with an Eighth
Amendment claim that execution of the
mentally retarded is cruel and unusual.
We have never before held it to be cruel
and unusual punishment to impose a sentence in violation of some other constitutional imperative.
*
*
*
Todays opinion adds one more to the
long list of substantive and procedural requirements impeding imposition of the
death penalty imposed under this Courts
assumed power to invent a death-is-different jurisprudence.
None of those
S 353requirements existed when the Eighth
Amendment was adopted, and some of
them were not even supported by current
moral consensus. They include prohibition
2267
of the death penalty for ordinary murder, Godfrey, 446 U.S., at 433, 100 S.Ct.
1759, for rape of an adult woman, Coker,
433 U.S., at 592, 97 S.Ct. 2861, and for
felony murder absent a showing that the
defendant possessed a sufficiently culpable
state of mind, Enmund, 458 U.S., at 801,
102 S.Ct. 3368; prohibition of the death
penalty for any person under the age of 16
at the time of the crime, Thompson, 487
U.S., at 838, 108 S.Ct. 2687 (plurality opinion); prohibition of the death penalty as
the mandatory punishment for any crime,
Woodson v. North Carolina, 428 U.S. 280,
305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)
(plurality opinion), Sumner v. Shuman,
483 U.S. 66, 7778, 107 S.Ct. 2716, 97
L.Ed.2d 56 (1987); a requirement that the
sentencer not be given unguided discretion, Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per
curiam), a requirement that the sentencer
be empowered to take into account all
mitigating circumstances, Lockett v. Ohio,
438 U.S. 586, 604, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978) (plurality opinion), Eddings v. Oklahoma, supra, at 110, 102
S.Ct. 869; and a requirement that the
accused receive a judicial evaluation of his
claim of insanity before the sentence can
be executed, Ford, 477 U.S., at 410411,
106 S.Ct. 2595 (plurality opinion). There
is something to be said for popular abolition of the death penalty; there is nothing
to be said for its incremental abolition by
this Court.
This newest invention promises to be
more effective than any of the others in
turning the process of capital trial into a
game. One need only read the definitions
of mental retardation adopted by the
American Association on Mental Retardation and the American Psychiatric Association (set forth in the Courts opinion, ante,
at 2245, n. 3) to realize that the symptoms
of this condition can readily be feigned.
And whereas the capital defendant who
feigns insanity risks commitment to a mental institution until he can be cured (and
then tried and executed), Jones v. United
States, 463 U.S. 354, 370, and n. 20, 103
2268
S.Ct. 3043, 77 L.Ed.2d 694 (1983), the capital defendant who feigns mental retardation risks nothing at all. The mere pendency S 354of the present case has brought
us petitions by death row inmates claiming
for the first time, after multiple habeas
petitions, that they are retarded. See, e.g.,
Moore v. Texas, 535 U.S. 1044, 122 S.Ct.
1814, 152 L.Ed.2d 668 (2002) (SCALIA, J.,
dissenting from grant of applications for
stay of execution).
Perhaps these practical difficulties will
not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a
mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will telland the brief time
those States have had the new disposition
in place (an average of 6.8 years) is surely
not enough. But if the practical difficulties do not appear, and if the other States
share the Courts perceived moral consensus that all mental retardation renders the
death penalty inappropriate for all crimes,
then that majority will presumably follow
suit. But there is no justification for this
Courts pushing them into the experimentand turning the experiment into a
permanent practiceon constitutional pretext. Nothing has changed the accuracy
of Matthew Hales endorsement of the
common laws traditional method for taking account of guilt-reducing factors, written over three centuries ago:
[Determination of a persons incapacity]
is a matter of great difficulty, partly
from the easiness of counterfeiting this
disability TTT and partly from the variety of the degrees of this infirmity,
whereof some are sufficient, and some
are insufficient to excuse persons in capital offenses. TTT
Yet the law of England hath afforded
the best method of trial, that is possible,
of this and all other matters of fact,
namely, by a jury of twelve men all
concurring in the same judgment, by the
testimony of witnesses TTT, and by the
536 U.S. 353
inspection and direction of the judge.

1 Pleas of the Crown, at 3233.
I respectfully dissent.
,
536 U.S. 273, 153 L.Ed.2d 309
S 273GONZAGA UNIVERSITY
and Roberta S. League,
Petitioners,
v.
John DOE.
No. 01679.
Argued April 24, 2002.
Former university student sued university under 1983, alleging violations of

Family Educational Rights and Privacy
Act (FERPA). The Spokane County Superior Court, Kenneth Kato, J., found for
student, and university appealed. The
Court of Appeals, 99 Wash.App. 338, 992
P.2d 545, reversed in relevant part, and
student petitioned for review. The Washington Supreme Court, Ireland, J., 143
Wash.2d 687, 24 P.3d 390, reversed that
decision, and university petitioned for certiorari. The United States Supreme Court,
Chief Justice Rehnquist, held that FERPAs nondisclosure provisions created no
personal rights to enforce under 1983,
abrogating Falvo v. Owasso Independent
School Dist. No. I011, 233 F.3d 1203,
Brown v. Oneonta, 106 F.3d 1125.
Justice Breyer, filed opinion concurring in the judgment in which Justice
Souter joined.
Justice Stevens filed dissenting opinion in which Justice Ginsburg joined.
546
685 FEDERAL REPORTER, 3d SERIES
district court stated that it did not find

Hale credible for many of the reasons [it
had] already touched upon and that it
believed Hale was not truthful in that
respect. It concluded that the testimony
is replete with instances in which [the
court thought] Mr. Hale demonstrated that
he in fact knew that he was not doing this
for a properly authorized police activity.
Although it did not use the term perjury, the record clearly indicates that the
district court at least implicitly found that
Hale provided false testimony concerning
a material matter with the willful intent to
provide false testimony. United States v.
Como, 53 F.3d 87, 89 (5th Cir.1995) (citation omitted). This is sufficient to support
an obstruction of justice enhancement. Id.
(noting that a separate and clear finding
on each element of the alleged perjury,
although preferable, is not required).
2.
[39] The Sentencing Guidelines also
provide for a two level increase to a defendants offense level in cases where the
court finds that the defendant abused a
position of public or private trust, or used
a special skill, in a manner that significantly facilitated the commission or concealment of the offense. U.S.S.G. 3B1.3.
In reviewing an abuse-of-trust determination, we determine whether the defendant
occupied a position of trust and whether he
abused his position in a manner that significantly facilitated the commission or
concealment of the offense. United
States v. Kay, 513 F.3d 432, 459 (5th Cir.
2007) (defining significant facilitation as
whether the defendant occupied a superior position, relative to all people in a position to commit the offense, as a result of
[his] job) (citation omitted).
[40, 41] At sentencing, the district
court adopted the presentence investigation report (PSR) which, like the evidence
at trial, provided that Hale was a patrol

officer working for the Laredo Police Department when he became involved in the
cocaine escort scheme. Police officers
hold positions of public trust. See Deville,
278 F.3d at 508. The PSR and trial evidence also depicted how Hale and his coconspirators agreed to use police radios to
monitor police frequencies in order to detect whether an escort was under surveillance and whether there was a dispatch
related to the escorts. This evidence is
sufficient to establish that Hale abused his
position as a police officer to better facilitate and conceal the cocaine escort conspiracy.
Accordingly, we find that the district
courts findings and its application of both
of the two level enhancements were not
clearly erroneous.
IV.
For the foregoing reasons, we
the district court on all issues
appeal (except for the Speedy
waiver issue) and, accordingly,
Hales conviction and sentence.
AFFIRM
raised on
Trial Act
AFFIRM
,
Chaz BUNCH, PetitionerAppellant,
v.
Keith SMITH, RespondentAppellee.
No. 103426.
United States Court of Appeals,
Sixth Circuit.
Argued: June 7, 2012.
Decided and Filed: July 6, 2012.
Background: State inmate filed petition
for writ of habeas corpus. The United
547
BUNCH v. SMITH
Cite as 685 F.3d 546 (6th Cir. 2012)
States District Court for the Northern

District of Ohio, Dan A. Polster, J., 2010
WL 750116, denied petition, and petitioner
appealed.
Holding: The Court of Appeals, Rogers,
Circuit Judge, held that state courts determination that juvenile petitioners 89
year sentence did not violate Eighth
Amendment was reasonable.
Affirmed.
Habeas Corpus O535

State courts determination that juvenile offenders 89year sentence for robbery, kidnapping, and rape did not violate
Eighth Amendments prohibition against
cruel and unusual punishment was not contrary to, or unreasonable application of,
clearly established federal law in Graham
v. Florida, and thus did not warrant federal habeas relief, despite juveniles contention that his consecutive, fixed-term sentences amounted to practical equivalent of
life without parole.
U.S.C.A. Const.
Amend. 8; 28 U.S.C.A. 2254(d)(1).
ARGUED: Stephen P. Hardwick, Ohio

Public Defenders Office, Columbus, Ohio,
for Appellant. Lauren Suzanne Kuley, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Stephen P. Hardwick, Ohio Public Defenders
Office, Columbus, Ohio, for Appellant.
Jerri L. Fosnaught, Alexandra T. Schimmer, Matthew A. Kanai, Office of the Ohio
Attorney General, Columbus, Ohio, for Appellee.
Before: ROGERS, GRIFFIN, and
DONALD, Circuit Judges.
OPINION
ROGERS, Circuit Judge.
Chaz Bunch was convicted in Ohio state
court of robbing, kidnaping, and repeatedly raping a young woman when he was 16
years old. The state trial court sentenced
Bunch to consecutive, fixed terms totaling
89 years imprisonment. Bunch appealed,
arguing, among other things, that the trial
court violated the Eighth Amendments
prohibition on cruel and unusual punishments by sentencing him to the functional
equivalent of life without parole for crimes
he committed as a juvenile. The Ohio
Court of Appeals, however, rejected this
argument and the Ohio Supreme Court
denied Bunch discretionary review.
Bunch then filed a habeas petition, reasserting his Eighth Amendment claim, but
the district court denied Bunch relief.
Bunch now appeals, arguing that his
lengthy prison sentence is tantamount to a
life sentence and therefore runs afoul of
the intervening Supreme Court decision in
Graham v. Florida, which held that [t]he
Constitution prohibits the imposition of a
life without parole sentence on a juvenile
offender who did not commit homicide. U.S. , 130 S.Ct. 2011, 2034,
176 L.Ed.2d 825 (2010).
Bunch is not entitled to habeas relief.
Even if we assume that Graham applies to
Bunchs case on collateral review, that case
does not clearly establish that consecutive,
fixed-term sentences for juveniles who
have committed multiple nonhomicide offenses are unconstitutional when they
amount to the practical equivalent of life
without parole.
This case arises from the horrific robbery, kidnaping, and repeated rape of
M.K., a 22yearold female Youngstown
State University student. On an evening
in 2001, M.K. arrived at her workplace.
As M.K. exited her vehicle, she noticed a
black car drive up the street and park a
548
few houses away. M.K. then saw a man

wearing a mask running toward her. The
man, later identified as Brandon Moore,
pointed a gun at M.K., ordered her to hand
over her money and belongings, and told
her to get into the passenger seat of her
car. Once M.K. was seated, Moore got
into the drivers seat and drove away, following the black car.
At some point, the two cars stopped. A
second gunman, Bunch, exited the black
car and entered M.K.s car through the
rear passengers side door. Bunch and
Moore both pointed their guns at M.K.
The cars then traveled to a gravel lot and
Bunch ordered M.K. out of the car. While
holding M.K. at gunpoint, Bunch and
Moore took turns orally raping her.
Bunch and Moore then forced M.K. to the
trunk and they anally raped her. While
this was occurring, Jamar Callier emerged
from the black car and stole some of
M.K.s belongings from the trunk. Bunch
then threw M.K. to the ground and, while
they were still armed, Bunch and Moore
vaginally and orally raped her.
Callier eventually stopped the attack
and put M.K. back in her car. M.K. quickly locked her doors and drove away. Police later tracked down the perpetrators
based on the black cars license plate number, which M.K. managed to memorize
during the ordeal.
Bunch, who was 16 years old at the time
of the attack, was indicted on multiple
offenses. Bunch went to trial and a jury
found him guilty of three counts of rape,
three counts of complicity to commit rape,
one count of aggravated robbery, one
count of conspiracy to commit aggravated
robbery, one count of kidnaping, one count
of misdemeanor menacing, and all related
firearm specifications.
The trial court sentenced Bunch to the
maximum term of imprisonment on all of
the charges and ordered that he serve
each of the felony sentences consecutively.

Bunch appealed and, while most of his
convictions were affirmed, his conspiracy
conviction was vacated and his case was
remanded for resentencing.
On remand, the trial court sentenced
Bunch to the maximum term of imprisonment on each of the remaining counts10
years for each of the three counts of rape,
10 years for each of the three counts of
complicity to commit rape, 10 years for
aggravated robbery, 10 years for kidnaping, and 180 days for misdemeanor menacing. The trial court also sentenced Bunch
to nine years for the firearm specifications.
The trial court ordered Bunch to serve his
sentences for the felony convictions and
firearm specifications consecutively, for a
total of 89 years imprisonment. The trial
court explained its sentence, saying to
Bunch, I just have to make sure that you
dont get out of the penitentiary. Ive got
to do everything I can to keep you there,
because it would be a mistake to have you
back in society.
Bunch appealed, arguing, among other
things, that the trial court violated the
Eighth Amendments prohibition on cruel
and unusual punishments by sentencing
him to 89 years imprisonment, the functional equivalent of life without parole, for
crimes he committed as a juvenile. State
v. Bunch, No. 06 MA 106, 2007 WL
4696832, at *5*6 (Ohio Ct.App. Dec. 21,
2007). The Ohio Court of Appeals, however, explicitly rejected this argument and
affirmed the judgment of the trial court.
Id. at *7. The Ohio Supreme Court denied
Bunchs petition for discretionary review.
State v. Bunch, 118 Ohio St.3d 1410, 886
N.E.2d 872 (2008).
Bunch then filed a 28 U.S.C. 2254
habeas petition in federal district court,
arguing, once again, that his 89year sentence violated the Eighth Amendment.
BUNCH v. SMITH
Cite as 685 F.3d 546 (6th Cir. 2012)
The magistrate judge recommended that

the district court withhold judgment on
Bunchs Eighth Amendment claim until
the Supreme Court decided Graham v.
Florida, regarding the constitutionality of
life without parole sentences for juveniles
convicted of nonhomicide offenses. Bunch
v. Smith, No. 1:09CV0901, 2009 WL
5947369, at *20 (N.D.Ohio Dec. 8, 2009).
The magistrate judge reasoned that there
was at least a possibility that a broadlyworded decision in Graham could affect
Bunch. Id.
The district court, however, did not accept the magistrate judges recommendation, finding Graham factually distinguishable from the instant case. Bunch
v. Smith, No. 1:09CV901, 2010 WL 750116,
at *2 (N.D.Ohio Mar. 2, 2010). The district court reasoned:
The trial court in Graham imposed two
life sentences without parole on the juvenile offender. The court in this case
imposed ten year sentences on each of
eight distinct felonies, to be served consecutively, along with nine years for
firearm specifications, also to be served
consecutively-for an aggregate prison
sentence of 89 years. And, despite the
Magistrate Judges prompting, there is
still no indication that Bunch will not be
eligible for parole prior to completion of
that sentence. Thus, any ruling the Supreme Court issues in Graham will not
apply to this case. Even if the Supreme
Court concludes that it violates the Constitution to impose a life sentence without parole on a juvenile offender, the
undersigned would have to create new
law by extending that ruling to this
case, something it is not inclined to do.
Id. The district court ultimately denied
Bunchs 2254 petition and denied him a
certificate of appealability. Id.
Bunch then filed a timely notice of appeal and a motion for a certificate of ap-
549
pealability with this court.

Shortly
thereafter, the Supreme Court decided
Graham, holding that [t]he Constitution
prohibits the imposition of a life without
parole sentence on a juvenile offender
who did not commit homicide. 130 S.Ct.
at 2034. This court then granted Bunch
a certificate of appealability as to his
Eighth Amendment claim.
The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) applies to
Bunchs case because his Eighth Amendment claim was adjudicated on the merits
in state court. See 28 U.S.C. 2254(d).
Indeed, Bunch argued on direct appeal
that his 89year sentence was the functional equivalent of life without parole and,
therefore, violated the Eighth Amendments prohibition on cruel and unusual
punishments. The Ohio Court of Appeals,
however, explicitly rejected this argument,
and the Ohio Supreme Court denied
Bunchs petition for discretionary review.
While the state appellate courts issued
their decisions before the United States
Supreme Court decided Graham, Bunchs
Eighth Amendment claim was nevertheless adjudicated on the merits in state
court. Thus, as both parties agree, AEDPA applies to Bunchs case.
The question before this court then is
whether the state courts adjudication of
Bunchs Eighth Amendment claim resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly established Federal law.
28
U.S.C. 2254(d)(1). The Supreme Court
has recently clarified that clearly established Federal Law means the law that
existed at the time of the last state-court
adjudication on the merits. Greene v.
Fisher, U.S. , 132 S.Ct. 38, 45, 181
L.Ed.2d 336 (2011). Here, even if we consider the last state-court adjudication on
the merits to be the Ohio Supreme
Courts decision denying Bunchs petition
550
for discretionary review, that decision was

still issued before the United States Supreme Court decided Graham. In other
words, Graham was not on the books until
after Bunch exhausted all of his state appeals. An argument could be made, however, that Graham nonetheless applies because it sets forth a new rule prohibiting a
certain category of punishment for a class
of defendants and therefore can be raised
on collateral review notwithstanding the
Supreme Courts decision in Teague v.
Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989). But see Greene, 132
S.Ct. at 44 (stating that the AEDPA and
Teague inquiries are distinct. The retroactivity rules that govern federal habeas
review on the meritswhich include Teagueare quite separate from the relitigation bar imposed by AEDPATTTT (citation
omitted)).
We need not resolve this threshold question of whether Graham applies to Bunchs
case on collateral review because even assuming, without deciding, that Graham
does apply, Bunch is still not entitled to
habeas relief. This is because Bunchs
sentence was not contrary to clearly established federal law even if Graham is considered a part of that law. While Bunch
claims that his sentence runs afoul of Graham, that case did not clearly establish
that consecutive, fixed-term sentences for
juveniles who commit multiple nonhomicide offenses are unconstitutional when
they amount to the practical equivalent of
life without parole. Thus, the district
court properly denied Bunchs habeas petition.
Graham is not clearly applicable to this
case. In Graham, 16yearold Terrance
Graham pled guilty to armed burglary and
attempted armed robbery pursuant to a
plea agreement. 130 S.Ct. at 2018. Under the agreement, the state trial court
withheld adjudication of guilt as to both
charges and sentenced Graham to concurrent three-year terms of probation. Id.

When Graham subsequently violated the
terms of his probation by committing additional crimes, the trial court adjudicated
him guilty of the earlier charges and revoked his probation. Id. at 201920. Under Florida law, Graham was eligible to
receive a minimum sentence of five years
imprisonment and the state recommended
a 30year prison term. Id. at 2019. The
trial court, however, sentenced Graham to
life in prison without the possibility of
release for the armed burglary conviction.
Id. at 2020. After the Florida Court of
Appeals affirmed Grahams sentence, and
the Florida Supreme Court denied review,
the United States Supreme Court granted
certiorari and reversed. Id.
The Court noted that Graham implicate[d] a particular type of sentence as it
applies to an entire class of offenders who
have committed a range of crimes. Graham, 130 S.Ct. at 202223. The Court
first determined that a national consensus
had developed against sentencing juvenile
nonhomicide offenders to life without parole. Id. at 202326. The Court then
stated that juveniles are less deserving
of the most severe punishments because,
as compared to adults, they exhibit a
lack of maturity and an underdeveloped
sense of responsibility. Id. at 2026
(quoting Roper v. Simmons, 543 U.S. 551,
569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)).
The Court further recognized that life
without parole sentences are disproportionately harsher for juveniles than for
adults, reasoning that a juvenile offender
will on average serve more years and a
greater percentage of his life in prison
than an adult offender. Graham, 130
S.Ct. at 2028. The Court also concluded
that none of the goals of penal sanctions
that have been recognized as legitimate
retribution, deterrence, incapacitation, and
rehabilitationprovides an adequate justi-
BUNCH v. SMITH
Cite as 685 F.3d 546 (6th Cir. 2012)
fication for sentencing juvenile nonhomicide offenders to life without parole. Id.
(citation omitted). The Court thus held
that for a juvenile offender who did not
commit homicide the Eighth Amendment
forbids the sentence of life without parole. Id. at 2030.
This holding is not clearly applicable to
Bunchs case. It is true that Bunch and
Graham were both juvenile offenders who
did not commit homicide. But while Graham was sentenced to life in prison for
committing one nonhomicide offense,
Bunch was sentenced to consecutive, fixedterm sentencesthe longest of which was
10 yearsfor committing multiple nonhomicide offenses. In Graham, the Court
made it clear that [t]he instant case concerns only those juvenile offenders sentenced to life without parole solely for a
nonhomicide offense. Id. at 2023 (emphasis added). The Court stressed that drawing a clear line was necessary to prevent the possibility that life without parole
sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently
culpable to merit that punishment. Id. at
2030 (emphasis added). The Court reasoned that [b]ecause the age of 18 is the
point where society draws the line for
many purposes between childhood and
adulthood, those who were below that age
when the offense was committed may not
be sentenced to life without parole for a
nonhomicide crime. Id. (emphasis added)
(quoting Roper, 543 U.S. at 574, 125 S.Ct.
1183). The Court did not address juvenile
offenders, like Bunch, who received consecutive, fixed-term sentences for committing multiple nonhomicide offenses. Thus,
we cannot say that Bunchs sentence was
contrary to clearly established federal law.
1.
Bunch claims, and the Warden does not

dispute, that under Ohios recently revised
sentencing laws, he will be at least 95 years
551
To be sure, Bunchs 89year aggregate

sentence may end up being the functional
equivalent of life without parole.1 For this
reason, Bunch argues that he will not be
given the meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation called for in Graham. 130 S.Ct. at 2030. But in Graham,
the Court said that a juvenile is entitled to
such a realistic opportunity to obtain release if a state imposes a sentence of
life. Id. at 2034. That did not happen
in this case. And since no federal court
has ever extended Grahams holding beyond its plain language to a juvenile offender who received consecutive, fixedterm sentences, we cannot say that
Bunchs sentence was contrary to clearly
established federal law.
The Courts analysis in Graham supports this conclusion because the analysis
did not encompass consecutive, fixed-term
sentences. Since Graham involved a categorical challenge to a particular type of
sentence, the Court first considered objective indicia of societys standards, as
expressed in legislative enactments and
state practice to determine whether there
is a national consensus against the sentencing practice at issue. Id. at 2022
(quoting Roper, 543 U.S. at 572, 125 S.Ct.
1183). The Court analyzed state and federal sentencing laws, tallying the number
of jurisdictions that allowed juvenile nonhomicide offenders to be sentenced to life
without parole. Graham, 130 S.Ct. at
2023. The Court then examined actual
sentencing practices in jurisdictions where
the sentence in question is permitted by
statute and concluded that [a]lthough
these statutory schemes contain no explicit
prohibition on sentences of life without
parole for juvenile nonhomicide offenders,
old before he is eligible for release from prison.
552
those sentences are most infrequent. Id.

Indeed, the Court found only 123 juvenile
nonhomicide offenders serving life without
parole sentences in the United States.
Id. at 2024. Based on this and other data,
the Court concluded that the sentence of
life without parole for juvenile nonhomicide offenders TTT is exceedingly rare.
And it is fair to say that a national consensus has developed against it. Id. at 2026
(citation omitted).
P.3d 410, 415 (App.2011). This split demonstrates that Bunchs expansive reading
of Graham is not clearly established. Perhaps the Supreme Court, or another federal court on direct review, will decide that
very lengthy, consecutive, fixed-term sentences for juvenile nonhomicide offenders
violate the Eighth Amendment. But until
the Supreme Court rules to that effect,
Bunchs sentence does not violate clearly
established federal law.
The Court, however, did not analyze

sentencing laws or actual sentencing practices regarding consecutive, fixed-term
sentences for juvenile nonhomicide offenders. This demonstrates that the Court did
not even consider the constitutionality of
such sentences, let alone clearly establish
that they can violate the Eighth Amendments prohibition on cruel and unusual
punishments. Thus, in light of the Courts
analysis in Graham, Bunchs sentence does
not violate clearly established federal law.
A contrary result would lead to a lot of

questions. As one court persuasively
wrote:
At what number of years would the
Eighth Amendment become implicated
in the sentencing of a juvenile: twenty,
thirty, forty, fifty, some lesser or greater number? Would gain time be taken
into account? Could the number vary
from offender to offender based on race,
gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham
majority opinion that suggests that no
matter the number of offenses or victims
or type of crime, a juvenile may not
receive a sentence that will cause him to
spend his entire life incarcerated without a chance for rehabilitation, in which
case it would make no logical difference
whether the sentence is life or 107
years. Without any tools to work with,
however, we can only apply Graham as
it is written.
This conclusion is further supported by

the fact that courts across the country are
split over whether Graham bars a court
from sentencing a juvenile nonhomicide offender to consecutive, fixed terms resulting in an aggregate sentence that exceeds
the defendants life expectancy. Some
courts have held that such a sentence is a
de facto life without parole sentence and
therefore violates the spirit, if not the letter, of Graham. See, e.g., People v. J.I.A.,
127 Cal.Rptr.3d 141, 149 (2011); People v.
Nunez, 125 Cal.Rptr.3d 616, 624 (2011).2
Other courts, however, have rejected the
de facto life sentence argument, holding
that Graham only applies to juvenile nonhomicide offenders expressly sentenced to
life without parole. See, e.g., Henry v.
State, 82 So.3d 1084, 1089 (Fla.Ct.App.
2012); State v. Kasic, 228 Ariz. 228, 265
2.
The California Supreme Court recently

granted review of these decisions. See People
v. J.I.A., Cal.4th , 130 Cal.Rptr.3d
Henry, 82 So.3d at 1089 (footnote omitted).

In Graham, the Court wrote that [t]he
Constitution prohibits the imposition of a
life without parole sentence on a juvenile
offender who did not commit homicide. A
State need not guarantee the offender
eventual release, but if it imposes a sentence of life it must provide him or her
851, 260 P.3d 283 (2011); People v. Nunez,
Cal.4th , 128 Cal.Rptr.3d 274, 255
P.3d 951 (2011).
U.S. v. ARCHIBALD
Cite as 685 F.3d 553 (6th Cir. 2012)
with some realistic opportunity to obtain

release before the end of that term. Graham, 130 S.Ct. at 2034 (emphasis added).
Since Bunch was not sentenced to life
without parole, his sentence does not violate clearly established federal law. As
one court put it: [i]f the Supreme Court
has more in mind, it will have to say what
that is. Henry, 82 So.3d at 1089.
Finally, the Supreme Courts recent decision in Miller v. Alabama, 567 U.S. ,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),
does not warrant a different result. In
Miller, the Court extended the reasoning
in Graham to mandatory sentences of life
without parole for juveniles convicted of
homicide offenses. But, once again, the
Court did not address juvenile offenders,
like Bunch, who received consecutive,
fixed-term sentences for committing multiple nonhomicide offenses. Thus, even if
we assume that Miller also applies to
Bunchs case on collateral review, Bunch is
still not entitled to habeas relief.
For the foregoing reasons, we affirm the
judgment of the district court.
,
UNITED STATES of America,
PlaintiffAppellant,
v.
Robert Lee ARCHIBALD, Jr., aka Chan;
Lolethia Muse; and Duantez Cornell
Jenkins, DefendantsAppellees.
No. 115488.
United States Court of Appeals,
Sixth Circuit.
Argued: April 10, 2012.
Decided and Filed: July 11, 2012.
Rehearing and Rehearing En Banc
Denied Aug. 22, 2012.
Background: The United States District
Court for the Middle District of Tennes-
553
see, Aleta Arthur Trauger, J., suppressed

evidence found as a result of a state-issued
search warrant, and government appealed.
Holdings: The Court of Appeals, Alice M.
Batchelder, Chief Judge, held that:
(1) search warrant affidavit was sufficient
to establish probable cause;
(2) district courts sua sponte Franks ruling was improper; and
(3) five-day delay in executing search warrant was reasonable.
1. Criminal Law O1026

On governments appeal of district
court order suppressing evidence found as
a result of a state-issued search warrant,
court lacked jurisdiction to consider defendants argument which he presented to the
district court regarding the preclusive effect of state courts decisions suppressing
the evidence where defendant failed to file
a notice of cross-appeal.
2. Searches and Seizures O200
Court will uphold a probable cause
determination if the issuing judge had a
substantial basis for concluding that a
search would uncover evidence of wrongdoing, and court will reverse only if the
issuing judges determinations were arbitrarily exercised. U.S.C.A. Const.Amend.
4.
3. Searches and Seizures O118
An affidavit that supplies little information concerning an informants reliability may support a finding of probable cause
to search under the totality of the circumstances if it includes sufficient corroborating information; moreover, an explicit and
detailed description of alleged wrongdoing,
EWING v. CALIFORNIA
538 U.S. 11
Cite as 123 S.Ct. 1179 (2003)
statutory safeguard failed, and the state

court was left to ensure that the Eighth
Amendment prohibition on grossly disproportionate sentences was met. If Andrades sentence is not grossly disproportionate, the principle has no meaning. The
California courts holding was an unreasonable application of clearly established
precedent.
,
538 U.S. 11, 155 L.Ed.2d 108
Gary Albert EWING, Petitioner,

v.
CALIFORNIA.
No. 016978.
Argued Nov. 5, 2002.
Decided March 5, 2003.
California defendant was convicted in

state court of felony grand theft, and sentenced to term of 25 years to life under
that states three strikes law. The California Court of Appeal, Second Appellate District, 2001 WL 1840666, affirmed sentence,
and the State Supreme Court denied review. Certiorari was granted. The Supreme Court, Justice OConnor, held that
sentence did not violate Eighth Amendments prohibition against cruel and unusual punishment.
Affirmed.
Justice Scalia concurred in result and
filed opinion.
Justice Thomas concurred in result
and filed opinion.
Justice Stevens dissented and filed
opinion in which Justices Souter, Ginsburg,
and Breyer joined.
1179
Justice Breyer dissented and filed

opinion in which Justices Stevens, Souter,
and Ginsburg joined.

Eighth Amendment does not require
strict proportionality between crime and
sentence; rather, it forbids only extreme
sentences that are grossly disproportionate to crime. U.S.C.A. Const.Amend. 8.
Constitution does not mandate adoption of any one penological theory; rather,
sentence can have variety of justifications,
and selection of sentencing rationale is
generally policy choice to be made by state
legislatures, not federal courts.
Sentence of felony grand theft defendant to term of 25 years to life for theft of
three golf clubs, pursuant to Californias
three strikes law, was not grossly disproportionate and thus did not violate Eighth
Amendments prohibition against cruel and
unusual punishment; sentence was justified
by states public-safety interest in incapacitating and deterring recidivist felons, and
amply supported by defendants long, serious criminal record. (Per Justice OConnor, with the Chief Justice and one Justice
concurring and two Justices concurring in
the result). U.S.C.A. Const.Amend. 8;
Wests
Ann.Cal.Penal
Code
667(e)(2)(A), 1170.12(c)(2)(A).
California trial judge justifiably exercised her discretion in treating golf club
stealers wobbler grand theft offense as
felony rather than misdemeanor for three
strikes sentencing purposes, given defendants long criminal history. (Per Justice
OConnor, with the Chief Justice and one
Justice concurring and two Justices concurring in the result). Wests Ann.Cal.Penal Code 17(b), 489(b).
1180
Syllabus *
Under Californias three strikes law, a
defendant who is convicted of a felony and
has previously been convicted of two or
more serious or violent felonies must receive an indeterminate life imprisonment
term. Such a defendant becomes eligible
for parole on a date calculated by reference to a minimum term, which, in this
case, is 25 years. While on parole, petitioner Ewing was convicted of felony
grand theft for stealing three golf clubs,
worth $399 apiece. As required by the
three strikes law, the prosecutor formally
alleged, and the trial court found, that
Ewing had been convicted previously of
four serious or violent felonies. In sentencing him to 25 years to life, the court
refused to exercise its discretion to reduce
the conviction to a misdemeanorunder a
state law that permits certain offenses,
known as wobblers, to be classified as
either misdemeanors or feloniesor to
dismiss the allegations of some or all of his
prior relevant convictions. The State
Court of Appeal affirmed. Relying on
Rummel v. Estelle, 445 U.S. 263, 100 S.Ct.
1133, 63 L.Ed.2d 382, it rejected Ewings
claim that his sentence was grossly disproportionate under the Eighth Amendment
and reasoned that enhanced sentences under the three strikes law served the
States legitimate goal of deterring and
incapacitating repeat offenders. The State
Supreme Court denied review.
538 U.S. 11
applies to noncapital sentences. Harmelin v. Michigan, 501 U.S. 957, 996997, 111
S.Ct. 2680, 115 L.Ed.2d 836 (KENNEDY,
J., concurring in part and concurring in
judgment). The Amendments application
in this context is guided by the principles
distilled in Justice KENNEDYs concurrence in Harmelin: [T]he primacy of the
legislature, the variety of legitimate penological schemes, the nature of our federal
system, and the requirement that proportionality review be guided by objective factors inform the final principle that the
strict proporStionality12 between crime and
sentence [but] forbids only extreme sentences that are grossly disproportionate
to the crime. Id., at 1001, 111 S.Ct. 2680.
Pp. 11851187.
(a) The Eighth Amendment has a

narrow proportionality principle that
(b) State legislatures enacting three

strikes laws made a deliberate policy
choice that individuals who have repeatedly engaged in serious or violent criminal
behavior, and whose conduct has not been
deterred by more conventional punishment
approaches, must be isolated from society
to protect the public safety. Though these
laws are relatively new, this Court has a
longstanding tradition of deferring to state
legislatures in making and implementing
such important policy decisions. The Constitution does not mandate adoption of
any one penological theory, 501 U.S., at
999, 111 S.Ct. 2680, and nothing in the
Eighth Amendment prohibits California
from choosing to incapacitate criminals
who have already been convicted of at
least one serious or violent crime. Recidivism has long been recognized as a legitimate basis for increased punishment and is
a serious public safety concern in California and the Nation. Any criticism of the
law is appropriately directed at the legislature, which is primarily responsible for
making the policy choices underlying any

282, 50 L.Ed. 499.
Held: The judgment is affirmed.

Affirmed.
Justice OCONNOR, joined by THE
CHIEF JUSTICE and Justice KENNEDY, concluded that Ewings sentence is
not grossly disproportionate and therefore
does not violate the Eighth Amendments
prohibition on cruel and unusual punishments. Pp. 11851190.
538 U.S. 14
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
criminal sentencing scheme. Pp. 1187

1189.
(c) In examining Ewings claim that
his sentence is grossly disproportionate,
the gravity of the offense must be compared to the harshness of the penalty.
Even standing alone, his grand theft
should not be taken lightly. The California Supreme Court has noted that crimes
seriousness in the context of proportionality review; that it is a wobbler is of no
moment, for it remains a felony unless the
trial court imposes a misdemeanor sentence. The trial judge justifiably exercised her discretion not to extend lenient
treatment given Ewings long criminal history. In weighing the offenses gravity,
both his current felony and his long history of felony recidivism must be placed on
the scales. Any other approach would not
accord proper deference to the policy judgments that find expression in the legislatures choice of sanctions. Ewings sentence is justified by the States publicsafety interest in incapacitating and deterring recidivist felons, and amply supported
by his own long, serious criminal record.
He has been convicted of numerous offenses, served nine separate prison terms,
and committed most of his crimes while on
probation or parole. His prior strikes
were serious felonies including robbery
and residential burglary. Though long, his
current sentence reflects a rational legislative judgment that is entitled to deference.
Pp. 11891190.
Justice SCALIA agreed that petitioners sentence does not violate the Eighth
unusual punishments, but on the ground
that that prohibition was aimed at excluding only certain modes of punishment.
This case demonstrates why S 13a proportionality principle cannot be intelligently
applied, and why Solem v. Helm, 463 U.S.
277, 103 S.Ct. 3001, 77 L.Ed.2d 637, should
not be given stare decisis effect. Pp.
11901191.
Justice THOMAS concluded that petitioners sentence does not violate the
Eighth Amendments prohibition against
cruel and unusual punishments because
1181
the Amendment contains no proportionality principle. P. 1191.

OCONNOR, J., announced the
judgment of the Court and delivered an
opinion, in which REHNQUIST, C.J., and
KENNEDY, J., joined. SCALIA, J., post,
p. 1190, and THOMAS, J., post, p. 1191,
filed opinions concurring in the judgment.
STEVENS, J., filed a dissenting opinion,
in which SOUTER, GINSBURG, and
BREYER, JJ., joined, post, p. 1191.
BREYER, J., filed a dissenting opinion, in
which STEVENS, SOUTER, and
GINSBURG, JJ., joined, post, p. 1193.
Quin Denvir, Sacramento, CA, for petitioner.
Donald E. De Nicola, for respondent.
Michael Chertoff, for United States as
amicus curiae, by special leave of the
Court, supporting the respondent.
Quinn Denvir, David M. Porter, Sacramento, CA, Karyn H. Bucur, Laguna Hills,
CA, Mark E. Haddad, Steven A. Ellis,
Alycia A. Degen, Sidley Austin Brown &
Wood LLP, Los Angeles, CA, for petitioner.
Bill Lockyer, Attorney General, Manuel
M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster,
Deputy Attorney General, Kristofer S.
Jorstad, Deputy Attorney General, David
C. Cook, Deputy Attorney General, Donald
E. De Nicola, Deputy Attorney General,
Los Angeles, California, for Respondent.
2002 WL 1769930 (Pet.Brief)
2002 WL 1808710 (Resp.Brief)
S 14Justice OCONNOR announced the
judgment of the Court and delivered an
opinion, in which THE CHIEF JUSTICE
and Justice KENNEDY join.
In this case, we decide whether the
Eighth Amendment prohibits the State of
1182
California from sentencing a repeat felon

to a prison term of 25 years to life under
the States Three Strikes and Youre Out
law.
I
A
Californias three strikes law reflects a
shift in the States sentencing policies toward incapacitating and deterring repeat
offenders who threaten the public safety.
The law was designed to ensure longer
prison sentences and greater punishment
for those who commit a felony and have
been previously convicted of serious and/or
violent felony offenses. Cal.Penal Code
Ann. 667(b) (West 1999). On March 3,
1993, California Assemblymen Bill Jones
and Jim Costa introduced Assembly Bill
971, the legislative version of what would
later become the three strikes law. The
Assembly Committee on Public Safety defeated the bill only weeks later. Public
outrage over the defeat sparked a voter
initiative to add Proposition 184, based
loosely on the bill, to the ballot in the
November 1994 general election.
On October 1, 1993, while Proposition
184 was circulating, 12yearold Polly
Klaas was kidnaped from her home in
Petaluma, California. Her admitted killer,
Richard Allen Davis, had a long criminal
history that included two prior kidnaping
convictions. Davis had served only half of
his S 15most recent sentence (16 years for
kidnaping, assault, and burglary). Had
Davis served his entire sentence, he would
still have been in prison on the day that
Polly Klaas was kidnaped.
Polly Klaas murder galvanized support
for the three strikes initiative. Within
days, Proposition 184 was on its way to
becoming the fastest qualifying initiative in
California history. On January 3, 1994,
the sponsors of Assembly Bill 971 resubmitted an amended version of the bill that
conformed to Proposition 184. On January 31, 1994, Assembly Bill 971 passed the
Assembly by a 63 to 9 margin. The Sen-
538 U.S. 14
ate passed it by a 29 to 7 margin on March

3, 1994. Governor Pete Wilson signed the
bill into law on March 7, 1994. California
voters approved Proposition 184 by a margin of 72 to 28 percent on November 8,
1994.
California thus became the second State
to enact a three strikes law. In November
1993, the voters of Washington State approved their own three strikes law, Initiative 593, by a margin of 3 to 1. U.S. Dept.
of Justice, National Institute of Justice, J.
Clark, J. Austin, & D. Henry, Three
Strikes and Youre Out: A Review of
State Legislation 1 (Sept.1997) (hereinafter
Review of State Legislation). Between
1993 and 1995, 24 States and the Federal
Government enacted three strikes laws.
Ibid. Though the three strikes laws vary
from State to State, they share a common
goal of protecting the public safety by
providing lengthy prison terms for habitual felons.
B
Californias current three strikes law
consists of two virtually identical statutory
schemes designed to increase the prison
terms of repeat felons. People v. Superior Court of San Diego Cty. ex rel. Romero,
13 Cal.4th 497, 504, 53 Cal.Rptr.2d 789,
917 P.2d 628, 630 (1996) (Romero). When
a defendant is convicted of a felony, and he
has previously been convicted of one or
more prior felonies defined as serious or
violent in Cal.Penal Code Ann. 667.5
and 1192.7 (West Supp.2002), sentencing
S 16is conducted pursuant to the three
strikes law. Prior convictions must be
alleged in the charging document, and the
defendant has a right to a jury determination that the prosecution has proved the
prior convictions beyond a reasonable
doubt. 1025; 1158 (West 1985).
If the defendant has one prior serious
or violent felony conviction, he must be
sentenced to twice the term otherwise
provided as punishment for the current
felony conviction. 667(e)(1) (West 1999);
538 U.S. 18
1183
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
1170.12(c)(1) (West Supp.2002). If the

defendant has two or more prior serious
or violent felony convictions, he must
receive an indeterminate term of life imprisonment. 667(e)(2)(A) (West 1999);
1170.12(c)(2)(A) (West Supp.2002). Defendants sentenced to life under the three
strikes law become eligible for parole on a
date calculated by reference to a minimum term, which is the greater of (a)
three times the term otherwise provided
for the current conviction, (b) 25 years, or
(c) the term determined by the court pursuant to 1170 for the underlying conviction,
including
any
enhancements.
667(e)(2)(A)(i)(iii)
(West
1999);
1170.12(c)(2)(A)(i)(iii) (West Supp.
2002).
Under California law, certain offenses
may be classified as either felonies or misdemeanors. These crimes are known as
wobblers. Some crimes that would otherwise be misdemeanors become wobblers because of the defendants prior
record. For example, petty theft, a misdemeanor, becomes a wobbler when the
defendant has previously served a prison
term for committing specified theft-related
crimes. 490 (West 1999); 666 (West
Supp.2002). Other crimes, such as grand
theft, are wobblers regardless of the defendants prior record. See 489(b)
(West 1999). Both types of wobblers are
triggering offenses under the three strikes
law only when they are treated as felonies.
Under California law, a wobbler is presumptively a felony and remains a felony
except when the discretion is actually exercised to make the crime a misdemeanor.
People v. WilSliams,17 27 Cal.2d 220, 229,
163 P.2d 692, 696 (1945) (emphasis deleted
and internal quotation marks omitted).
In California, prosecutors may exercise
their discretion to charge a wobbler as
either a felony or a misdemeanor. Likewise, California trial courts have discretion
to reduce a wobbler charged as a felony
to a misdemeanor either before preliminary examination or at sentencing to avoid
imposing a three strikes sentence.
Cal.Penal Code Ann. 17(b)(5), 17(b)(1)
(West 1999); People v. Superior Court of

Los Angeles Cty. ex rel. Alvarez, 14
Cal.4th 968, 978, 60 Cal.Rptr.2d 93, 928
P.2d 1171, 11771178 (1997). In exercising
this discretion, the court may consider
those factors that direct similar sentencing decisions, such as the nature and circumstances of the offense, the defendants
appreciation of and attitude toward the offense, TTT [and] the general objectives of
sentencing.
Ibid. (internal quotation
marks and citations omitted).
California trial courts can also vacate
allegations of prior serious or violent
felony convictions, either on motion by the
prosecution or sua sponte. Romero, supra, at 529530, 53 Cal.Rptr.2d 789, 917
P.2d, at 647648. In ruling whether to
vacate allegations of prior felony convictions, courts consider whether, in light of
the nature and circumstances of [the defendants] present felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the defendant may be
deemed outside the [three strikes]
schemes spirit, in whole or in part. People v. Williams, 17 Cal.4th 148, 161, 69
Cal.Rptr.2d 917, 948 P.2d 429, 437 (1998).
Thus, trial courts may avoid imposing a
three strikes sentence in two ways: first,
by reducing wobblers to misdemeanors
(which do not qualify as triggering offenses), and second, by vacating allegations of prior serious or violent felony
convictions.
C
On parole from a 9year prison term,
petitioner Gary Ewing walked into the pro
shop of the El Segundo Golf S 18Course in
Los Angeles County on March 12, 2000.
He walked out with three golf clubs, priced
at $399 apiece, concealed in his pants leg.
A shop employee, whose suspicions were
aroused when he observed Ewing limp out
of the pro shop, telephoned the police.
The police apprehended Ewing in the
parking lot.
1184
Ewing is no stranger to the criminal

justice system. In 1984, at the age of 22,
he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years probation, and a $300
fine. In 1988, he was convicted of felony
grand theft auto and sentenced to one year
in jail and three years probation. After
Ewing completed probation, however, the
sentencing court reduced the crime to a
misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the
case. In 1990, he was convicted of petty
theft with a prior and sentenced to 60 days
in the county jail and three years probation. In 1992, Ewing was convicted of
battery and sentenced to 30 days in the
county jail and two years summary probation. One month later, he was convicted of
theft and sentenced to 10 days in the
county jail and 12 months probation. In
January 1993, Ewing was convicted of burglary and sentenced to 60 days in the
county jail and one years summary probation. In February 1993, he was convicted
of possessing drug paraphernalia and sentenced to six months in the county jail and
three years probation. In July 1993, he
was convicted of appropriating lost property and sentenced to 10 days in the county
jail and two years summary probation. In
September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county
jail and one years probation.
In October and November 1993, Ewing
committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5week period. He
awakened one of his victims, asleep on her
living room sofa, as he tried to disconnect
her video cassette recorder from the teleWhen she
vision in S 19that room.
screamed, Ewing ran out the front door.
On another occasion, Ewing accosted a
victim in the mailroom of the apartment
complex. Ewing claimed to have a gun
and ordered the victim to hand over his
wallet. When the victim resisted, Ewing
produced a knife and forced the victim
538 U.S. 18
back to the apartment itself. While Ewing

rifled through the bedroom, the victim fled
the apartment screaming for help. Ewing
absconded with the victims money and
credit cards.
On December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police
officer. The knife used in the robbery and
a glass cocaine pipe were later found in the
back seat of the patrol car used to transport Ewing to the police station. A jury
convicted Ewing of first-degree robbery
and three counts of residential burglary.
Sentenced to nine years and eight months
in prison, Ewing was paroled in 1999.
Only 10 months later, Ewing stole the
golf clubs at issue in this case. He was
charged with, and ultimately convicted of,
one count of felony grand theft of personal
property in excess of $400. See Cal.Penal
Code Ann. 484 (West Supp.2002); 489
(West 1999). As required by the three
strikes law, the prosecutor formally alleged, and the trial court later found, that
Ewing had been convicted previously of
four serious or violent felonies for the
three burglaries and the robbery in the
Long Beach apartment complex. See
667(g) (West 1999); 1170.12(e) (West
Supp.2002).
At the sentencing hearing, Ewing asked
the court to reduce the conviction for
grand theft, a wobbler under California
law, to a misdemeanor so as to avoid a
three strikes sentence. See 17(b),
667(d)(1) (West 1999); 1170.12(b)(1)
(West Supp.2002). Ewing also asked the
trial court to exercise its discretion to dismiss the allegations of some or all of his
prior serious or violent felony convictions,
again for purposes of avoiding a three
strikes sentence. See Romero, 13 Cal.4th,
at 529531, 53 Cal.Rptr.2d 789, 917 P.2d,
at 647648. Before senStencing20 Ewing,
the trial court took note of his entire criminal history, including the fact that he was
on parole when he committed his latest
offense. The court also heard arguments
EWING v. CALIFORNIA
538 U.S. 21
Cite as 123 S.Ct. 1179 (2003)
from defense counsel and a plea from Ewing himself.

In the end, the trial judge determined
that the grand theft should remain a felony. The court also ruled that the four
prior strikes for the three burglaries and
the robbery in Long Beach should stand.
As a newly convicted felon with two or
more serious or violent felony convictions in his past, Ewing was sentenced
under the three strikes law to 25 years to
life.
The California Court of Appeal affirmed
in an unpublished opinion. No. B143745
(Apr. 25, 2001). Relying on our decision in
1133, 63 L.Ed.2d 382 (1980), the court
rejected Ewings claim that his sentence
was grossly disproportionate under the
Eighth Amendment. Enhanced sentences
under recidivist statutes like the three
strikes law, the court reasoned, serve the
legitimate goal of deterring and incapacitating repeat offenders. The Supreme
Court of California denied Ewings petition
for review, and we granted certiorari, 535
U.S. 969, 122 S.Ct. 1434, 152 L.Ed.2d 379
(2002). We now affirm.
II
A
[1] The Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle
that applies to noncapital sentences.
Harmelin v. Michigan, 501 U.S. 957, 996
997, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
(KENNEDY, J., concurring in part and
concurring in judgment); cf. Weems v.
United States, 217 U.S. 349, 371, 30 S.Ct.
544, 54 L.Ed. 793 (1910); Robinson v.
California, 370 U.S. 660, 667, 82 S.Ct.
1417, 8 L.Ed.2d 758 (1962) (applying the
Eighth Amendment to the States via the
Fourteenth Amendment). We have most
recently addressed the proportionality
principle as applied to terms of years in a
series of cases beginning with Rummel v.
Estelle, supra.
S 21In Rummel, we held that it did not
violate the Eighth Amendment for a State
1185
to sentence a three-time offender to life in

prison with the possibility of parole. Id.,
at 284285, 100 S.Ct. 1133. Like Ewing,
Rummel was sentenced to a lengthy prison
term under a recidivism statute. Rummels two prior offenses were a 1964 felony
for fraudulent use of a credit card to
obtain $80 worth of goods or services, and
a 1969 felony conviction for passing a
forged check in the amount of $28.36.
Id., at 265, 100 S.Ct. 1133. His triggering
offense was a conviction for felony theft
obtaining $120.75 by false pretenses.
Id., at 266, 100 S.Ct. 1133.
This Court ruled that [h]aving twice
imprisoned him for felonies, Texas was
entitled to place upon Rummel the onus of
one who is simply unable to bring his
conduct within the social norms prescribed
by the criminal law of the State. Id., at
284, 100 S.Ct. 1133. The recidivism statute is nothing more than a societal decision that when such a person commits yet
another felony, he should be subjected to
the admittedly serious penalty of incarceration for life, subject only to the States
judgment as to whether to grant him parole. Id., at 278, 100 S.Ct. 1133. We
noted that this Court has on occasion
stated that the Eighth Amendment prohibits imposition of a sentence that is grossly
disproportionate to the severity of the
crime. Id., at 271, 100 S.Ct. 1133. But
[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been
exceedingly rare. Id., at 272, 100 S.Ct.
1133. Although we stated that the proportionality principle would TTT come into
play in the extreme example TTT if a legislature made overtime parking a felony
punishable by life imprisonment, id., at
274, n. 11, 100 S.Ct. 1133, we held that
the mandatory life sentence imposed upon
this petitioner does not constitute cruel
and unusual punishment under the Eighth
and Fourteenth Amendments, id., at 285,
100 S.Ct. 1133.
1186
In Hutto v. Davis, 454 U.S. 370, 102

S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam), the defendant was sentenced to two
consecutive terms of 20 years in prison for
possession with intent to distribute nine
S 22ounces of marijuana and distribution of
marijuana. We held that such a sentence
was constitutional: In short, Rummel
stands for the proposition that federal
courts should be reluctant to review legislatively mandated terms of imprisonment,
and that successful challenges to the proportionality of particular sentences should
be exceedingly rare. Id., at 374, 102
S.Ct. 703 (citations and internal quotation
marks omitted).
Three years after Rummel, in Solem v.
Helm, 463 U.S. 277, 279, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983), we held that the
Eighth Amendment prohibited a life sentence without possibility of parole for a
seventh nonviolent felony. The triggering offense in Solem was uttering a no
account check for $100. Id., at 281, 103
S.Ct. 3001. We specifically stated that the
Eighth Amendments ban on cruel and unusual punishments prohibits TTT sentences that are disproportionate to the
crime committed, and that the constitutional principle of proportionality has been
recognized explicitly in this Court for almost a century. Id., at 284, 286, 103
S.Ct. 3001. The Solem Court then explained that three factors may be relevant
to a determination of whether a sentence
is so disproportionate that it violates the
Eighth Amendment: (i) the gravity of the
offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the
same crime in other jurisdictions. Id., at
292, 103 S.Ct. 3001.
Applying these factors in Solem, we
struck down the defendants sentence of
life without parole. We specifically noted
the contrast between that sentence and the
sentence in Rummel, pursuant to which
the defendant was eligible for parole. 463
U.S., at 297, 103 S.Ct. 3001; see also id., at
538 U.S. 21
300, 103 S.Ct. 3001 ([T]he South Dakota

commutation system is fundamentally different from the parole system that was
before us in Rummel). Indeed, we explicitly declined to overrule Rummel:
[O]ur conclusion today is not inconsistent
with Rummel v. Estelle. 463 U.S., at 303,
n. 32, 103 S.Ct. 3001; see also id., at 288,
n. 13, 103 S.Ct. 3001 ([O]ur decision S 23is
entirely consistent with this Courts prior
casesincluding Rummel v. Estelle).
Eight years after Solem, we grappled
with the proportionality issue again in
Harmelin. Harmelin was not a recidivism case, but rather involved a first-time
offender convicted of possessing 672 grams
of cocaine. He was sentenced to life in
prison without possibility of parole. A majority of the Court rejected Harmelins
claim that his sentence was so grossly
disproportionate that it violated the Eighth
Amendment. The Court, however, could
not agree on why his proportionality argument failed. Justice SCALIA, joined by
THE CHIEF JUSTICE, wrote that the
proportionality principle was an aspect of
our death penalty jurisprudence, rather
than a generalizable aspect of Eighth
Amendment law. 501 U.S., at 994, 111
S.Ct. 2680. He would thus have declined
to apply gross disproportionality principles
except in reviewing capital sentences.
Ibid.
Justice KENNEDY, joined by two other
Members of the Court, concurred in part
and concurred in the judgment. Justice
KENNEDY specifically recognized that
[t]he Eighth Amendment proportionality
principle also applies to noncapital sentences. Id., at 997, 111 S.Ct. 2680. He
then identified four principles of proportionality reviewthe primacy of the legislature, the variety of legitimate penological
schemes, the nature of our federal system,
and the requirement that proportionality
review be guided by objective factors
that inform the final one: The Eighth
Amendment does not require strict proportionality between crime and sentence.
538 U.S. 25
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
Rather, it forbids only extreme sentences

that are grossly disproportionate to the
crime. Id., at 1001, 111 S.Ct. 2680 (citing
Solem, supra, at 288, 103 S.Ct. 3001).
Justice KENNEDYs concurrence also
stated that Solem did not mandate comparative analysis within and between jurisdictions. 501 U.S., at 10041005, 111
S.Ct. 2680.
The proportionality principles in our
cases distilled in Justice KENNEDYs
concurrence guide our application of the
S 24Eighth Amendment in the new context
that we are called upon to consider.
B
For many years, most States have had
laws providing for enhanced sentencing of
repeat offenders. See, e.g., U.S. Dept. of
Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing (1996). Yet between 1993 and 1995,
three strikes laws effected a sea change in
criminal sentencing throughout the Nation.1 These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the
greatest threat to public safety: career
criminals. As one of the chief architects of
Californias three strikes law has explained: Three Strikes was intended to
go beyond simply making sentences tougher. It was intended to be a focused effort
to create a sentencing policy that would
use the judicial system to reduce serious
and violent crime. Ardaiz, Californias
Three Strikes Law: History, Expectations,
Consequences, 32 McGeorge L.Rev. 1, 12
(2000) (hereinafter Ardaiz).
Throughout the States, legislatures enacting three strikes laws made a deliberate
policy choice that individuals who have repeatedly engaged in serious or violent
criminal behavior, and whose conduct has
not been deterred by more conventional
1.
It is hardly surprising that the statistics relied upon by Justice BREYER show that prior
to the enactment of the three strikes law, no
one like Ewing could have served more than
10 years in prison. Post, at 1197 (dissenting
opinion) (emphasis added). Profound disap-
1187
approaches to punishment, must be isolated from society in order to protect the

public safety. Though three strikes laws
may be relatively new, our tradition of
deferring to state legislatures in making
and implementing such important policy
decisions is longstanding. Weems, 217
U.S., at 379, 30 S.Ct. 544; Gore v. United
States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2
L.Ed.2d 1405 S 25(1958); Payne v. Tennessee, 501 U.S. 808, 824, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991); Rummel, 445 U.S., at
274, 100 S.Ct. 1133; Solem, 463 U.S., at
290, 103 S.Ct. 3001; Harmelin, 501 U.S.,
at 998, 111 S.Ct. 2680 (KENNEDY, J.,
concurring in part and concurring in judgment).
[2] Our traditional deference to legislative policy choices finds a corollary in the
principle that the Constitution does not
mandate adoption of any one penological
theory. Id., at 999, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment). A sentence can have a
variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W. LaFave & A. Scott,
Substantive Criminal Law 1.5, pp. 3036
(1986) (explaining theories of punishment).
Some or all of these justifications may play
a role in a States sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state
When the California Legislature enacted
the three strikes law, it made a judgment
that protecting the public safety requires
incapacitating criminals who have already
been convicted of at least one serious or
violent crime. Nothing in the Eighth
Amendment prohibits California from
making that choice. To the contrary, our
cases establish that States have a valid
interest in deterring and segregating habitual criminals. Parke v. Raley, 506
U.S. 20, 27, 113 S.Ct. 517, 121 L.Ed.2d 391
pointment with the perceived lenity of criminal sentencing (especially for repeat felons)
led to passage of three strikes laws in the first
place. See, e.g., Review of State Legislation
1.
1188
(1992); Oyler v. Boles, 368 U.S. 448, 451,

82 S.Ct. 501, 7 L.Ed.2d 446 (1962) ([T]he
constitutionality of the practice of inflicting
severer criminal penalties upon habitual
offenders is no longer open to serious challenge). Recidivism has long been recognized as a legitimate basis for increased
punishment. See AlmendarezTorres v.
1219, 140 L.Ed.2d 350 (1998) (recidivism
is as typical a sentencing factor as one
might imagine); Witte v. United States,
515 U.S. 389, 400, 115 S.Ct. 2199, 132
L.Ed.2d 351 (1995) (In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because
the enhanced punishment imposed for the
later offense TTT [is] a stiffened penalty
for the latest crime, which is considered to
be an aggravated S 26offense because a repetitive one (quoting Gryger v. Burke,
334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed.
1683 (1948))).
Californias justification is no pretext.
Recidivism is a serious public safety concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates
released from state prisons were charged
with at least one serious new crime within three years of their release. See U.S.
Dept. of Justice, Bureau of Justice Statistics, P. Langan & D. Levin, Special Report: Recidivism of Prisoners Released in
1994, p. 1 (June 2002). In particular, released property offenders like Ewing had
higher recidivism rates than those released
after committing violent, drug, or publicorder offenses. Id., at 8. Approximately
73 percent of the property offenders released in 1994 were arrested again within
three years, compared to approximately 61
percent of the violent offenders, 62 percent
of the public-order offenders, and 66 percent of the drug offenders. Ibid.
In 1996, when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of
1,165 prior felony convictions, an average
of 5 apiece. See Furillo, Three Strikes
538 U.S. 25
The Verdict: Most Offenders Have Long

Criminal Histories, Sacramento Bee, Mar.
31, 1996, p. A1. The prior convictions included 322 robberies and 262 burglaries.
Ibid. About 84 percent of the 233 three
strikes offenders had been convicted of at
least one violent crime. Ibid. In all, they
were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults
and child molestations. Ibid. The Sacramento Bee concluded, based on its investigation, that [i]n the vast majority of the
cases, regardless of the third strike, the
[three strikes] law is snaring [the] longterm habitual offenders with multiple felony convictions TTT. Ibid.
The States interest in deterring crime
also lends some support to the three
strikes law. We have long viewed both
incapacitation and deterrence as rationales
for recidivism S 27statutes: [A] recidivist
statute[s] TTT primary goals are to deter
repeat offenders and, at some point in the
life of one who repeatedly commits criminal offenses serious enough to be punished
as felonies, to segregate that person from
the rest of society for an extended period
of time. Rummel, supra, at 284, 100
S.Ct. 1133. Four years after the passage
of Californias three strikes law, the recidivism rate of parolees returned to prison
for the commission of a new crime dropped
by nearly 25 percent. California Dept. of
Justice, Office of the Attorney General,
Three Strikes and Youre OutIts Impact on the California Criminal Justice
System After Four Years, p. 10 (1998).
Even more dramatically:
An unintended but positive consequence of Three Strikes has been the
impact on parolees leaving the state.
More California parolees are now leaving the state than parolees from other
jurisdictions entering California. This
striking turnaround started in 1994. It
was the first time more parolees left the
state than entered since 1976. This
trend has continued and in 1997 more
than 1,000 net parolees left California.
Ibid.
538 U.S. 29
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
See also Janiskee & Erler, Crime, Punishment, and Romero: An Analysis of the
Case Against Californias Three Strikes
Law, 39 Duquesne L.Rev. 43, 4546 (2000)
(Prosecutors in Los Angeles routinely report that felons tell them they are moving
out of the state because they fear getting a
second or third strike for a nonviolent
offense (quoting Sanchez, A Movement
Builds Against Three Strikes Law,
Washington Post, Feb. 18, 2000, p. A3)).
To be sure, Californias three strikes law
has sparked controversy. Critics have
doubted the laws wisdom, cost-efficiency,
and effectiveness in reaching its goals.
See, e.g., Zimring, Hawkins, & Kamin,
Punishment and Democracy:
Three
Strikes and Youre Out in California
(2001); Vitiello, Three Strikes: Can We
Return to Rationality? 87 J.Crim. S 28L. &
C. 395, 423 (1997). This criticism is appropriately directed at the legislature, which
has primary responsibility for making the
difficult policy choices that underlie any
criminal sentencing scheme. We do not sit
as a superlegislature to second-guess
these policy choices. It is enough that the
State of California has a reasonable basis
for believing that dramatically enhanced
sentences for habitual felons advance[s]
the goals of [its] criminal justice system in
any substantial way. See Solem, 463
U.S., at 297, n. 22, 103 S.Ct. 3001.
III
[3] Against this backdrop, we consider
Ewings claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of
shoplifting three golf clubs. Brief for
Petitioner 6. We first address the gravity
of the offense compared to the harshness
of the penalty. At the threshold, we note
that Ewing incorrectly frames the issue.
The gravity of his offense was not merely
shoplifting three golf clubs. Rather,
Ewing was convicted of felony grand theft
for stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two violent or serious
1189
felonies. Even standing alone, Ewings

theft should not be taken lightly. His
crime was certainly not one of the most
passive felonies a person could commit.
Solem, supra, at 296, 103 S.Ct. 3001 (internal quotation marks omitted). To the
contrary, the Supreme Court of California
has noted the seriousness of grand theft
in the context of proportionality review.
See In re Lynch, 8 Cal.3d 410, 432, n. 20,
105 Cal.Rptr. 217, 503 P.2d 921, 936, n. 20
(1972). Theft of $1,200 in property is a
felony under federal law, 18 U.S.C. 641,
and in the vast majority of States. See
App. B to Brief for Petitioner 21a.
[4] That grand theft is a wobbler
under California law is of no moment.
Though California courts have discretion
to reduce a felony grand theft charge to a
misdemeanor, it remains a felony for all
purposes unless and until the trial S 29court
imposes a misdemeanor sentence. In re
Anderson, 69 Cal.2d 613, 626, 73 Cal.Rptr.
21, 447 P.2d 117, 126 (1968) (Tobriner, J.,
concurring); see generally 1 B. Witkin &
N. Epstein, California Criminal Law 73
(3d ed.2000). The purpose of the trial
judges sentencing discretion to downgrade certain felonies is to impose a misdemeanor sentence in those cases in which
the rehabilitation of the convicted defendant either does not require, or would be
adversely affected by, incarceration in a
state prison as a felon. Anderson, supra,
at 664665, 73 Cal.Rptr. 21, 447 P.2d, at
152 (Tobriner, J., concurring). Under California law, the reduction is not based on
the notion that a wobbler is conceptually a misdemeanor. Necochea v. Superior
Court, 23 Cal.App.3d 1012, 1016, 100 Cal.
Rptr. 693, 695 (1972). Rather, it is intended to extend misdemeanant treatment
to a potential felon. Ibid. In Ewings
case, however, the trial judge justifiably
exercised her discretion not to extend such
lenient treatment given Ewings long criminal history.
In weighing the gravity of Ewings offense, we must place on the scales not only
1190
his current felony, but also his long history

of felony recidivism. Any other approach
would fail to accord proper deference to
the policy judgments that find expression
in the legislatures choice of sanctions. In
imposing a three strikes sentence, the
States interest is not merely punishing the
offense of conviction, or the triggering
offense: [I]t is in addition the interest TTT
in dealing in a harsher manner with those
who by repeated criminal acts have shown
that they are simply incapable of conforming to the norms of society as established
by its criminal law. Rummel, 445 U.S.,
at 276, 100 S.Ct. 1133; Solem, supra, at
296, 103 S.Ct. 3001. To give full effect to
the States choice of this legitimate penological goal, our proportionality review of
Ewings sentence must take that goal into
account.
Ewings sentence is justified by the
States public-safety interest in incapacitating and deterring recidivist felons, and
S 30amply supported by his own long, serious criminal record.2 Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of
incarceration, and committed most of his
crimes while on probation or parole. His
prior strikes were serious felonies including robbery and three residential burglaries. To be sure, Ewings sentence is a
long one. But it reflects a rational legislative judgment, entitled to deference, that
offenders who have committed serious or
violent felonies and who continue to commit felonies must be incapacitated. The
State of California was entitled to place
upon [Ewing] the onus of one who is simply unable to bring his conduct within the
2.
Justice BREYER argues that including Ewings grand theft as a triggering offense cannot be justified on property-crime-related incapacitation grounds because such crimes do
not count as prior strikes. Post, at 1201
1202. But the States interest in dealing with
repeat felons like Ewing is not so limited. As
we have explained, the overarching objective
of the three strikes law is to prevent serious
or violent offenders like Ewing from repeating their criminal behavior. See Cal.Penal
Code Ann. 667(b) (West 1999) (It is the
538 U.S. 29
social norms prescribed by the criminal

law of the State. Rummel, supra, at 284,
100 S.Ct. 1133. Ewings is not the rare
case in which a threshold comparison of
the crime committed and the sentence imposed leads to an inference of gross disproportionality. Harmelin, 501 U.S., at
1005, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment).
We hold that Ewings sentence of 25
years to life in prison, imposed for the
offense of felony grand theft under the
three strikes law, is not grossly disproportionate and therefore does not violate the
Eighth Amendments prohibition on
S 31cruel and unusual punishments. The
judgment of the California Court of Appeal
is affirmed.
It is so ordered.
Justice SCALIA, concurring in the
judgment.
In my opinion in Harmelin v. Michigan,
501 U.S. 957, 984, 985, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991), I concluded that the
Eighth Amendments prohibition of cruel
and unusual punishments was aimed at
excluding only certain modes of punishment, and was not a guarantee against
disproportionate sentences. Out of respect for the principle of stare decisis, I
might nonetheless accept the contrary
holding of Solem v. Helm, 463 U.S. 277,
103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)
that the Eighth Amendment contains a
narrow proportionality principleif I felt I
could intelligently apply it. This case
demonstrates why I cannot.
intent of the Legislature TTT to ensure longer
prison sentences and greater punishment for
those who commit a felony and have been
previously convicted of serious and/or violent
felony offenses). The California Legislature
therefore made a deliberate policy decision
TTT that the gravity of the new felony should
not be a determinative factor in triggering
the application of the Three Strikes Law.
Ardaiz 9. Neither the Eighth Amendment nor
this Courts precedent forecloses that legislative choice.
538 U.S. 33
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
Proportionalitythe notion that the

punishment should fit the crimeis inherently a concept tied to the penological goal
of retribution. [I]t becomes difficult even
to speak intelligently of proportionality,
once deterrence and rehabilitation are given significant weight, Harmelin, supra, at
989, 111 S.Ct. 2680not to mention giving
weight to the purpose of Californias three
strikes law: incapacitation. In the present
case, the game is up once the plurality has
acknowledged that the Constitution does
not mandate adoption of any one penological theory, and that a sentence can have
a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Ante, at 1187 (internal quotation
marks omitted). That acknowledgment
having been made, it no longer suffices
merely to assess the gravity of the offense compared to the harshness of the
penalty, ante, at 1189; that classic description of the proportionality principle
(alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the first step of the inquiry, ibid.
Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25yearstolife is
a proportionate punishment for stealing
three golf clubs), the S 32plurality must then
add an analysis to show that Ewings
sentence is justified by the States publicsafety interest in incapacitating and deterring recidivist felons. Ante, at 1190.
Which indeed it isthough why that has
anything to do with the principle of proportionality is a mystery. Perhaps the
plurality should revise its terminology, so
that what it reads into the Eighth Amendment is not the unstated proposition that
all punishment should be reasonably proportionate to the gravity of the offense,
1.
For present purposes, post, at 1194, 1202

(dissenting opinion), Justice BREYER applies
the framework established by Harmelin v.
Michigan, 501 U.S. 957, 10041005, 111 S.Ct.
2680, 115 L.Ed.2d 836 (1991), in analyzing
Ewings Eighth Amendment claim. I agree
with Justice BREYER that Ewings sentence
is grossly disproportionate even under Harmelins narrow proportionality framework.
1191
but rather the unstated proposition that all

punishment should reasonably pursue the
multiple purposes of the criminal law.
That formulation would make it clearer
than ever, of course, that the plurality is
not applying law but evaluating policy.
Because I agree that petitioners sentence does not violate the Eighth
Amendments prohibition against cruel
and unusual punishments, I concur in the
judgment.
Justice THOMAS, concurring in the
judgment.
I agree with Justice SCALIAs view that
the proportionality test announced in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,
77 L.Ed.2d 637 (1983), is incapable of judicial application. Even were Solems test
perfectly clear, however, I would not feel
compelled by stare decisis to apply it. In
my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment
contains no proportionality principle. See
985, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
(opinion of SCALIA, J.).
Because the plurality concludes that petitioners sentence does not violate the
Eighth Amendments prohibition on cruel
and unusual punishments, I concur in the
judgment.
Justice STEVENS, with whom Justice
SOUTER, Justice GINSBURG, and
Justice BREYER join, dissenting.
Justice BREYER has cogently explained why the sentence imposed in this
case is both cruel and unusual.1 The concurSrences33 prompt this separate writing to
emphasize that proportionality review is
However, it is not clear that this case is
controlled by Harmelin, which considered the
proportionality of a life sentence imposed on
a drug offender who had no prior felony convictions. Rather, the three-factor analysis established in Solem v. Helm, 463 U.S. 277,
290291, 103 S.Ct. 3001, 77 L.Ed.2d 637
(1983), which specifically addressed recidivist
sentencing, seems more directly on point.
1192
not only capable of judicial application but

also required by the Eighth Amendment.
The Eighth Amendment succinctly prohibits excessive sanctions. Atkins v.
Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242,
153 L.Ed.2d 335 (2002); see also U.S.
Const., Amdt. 8 (Excessive bail shall not
be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted). Faithful to the Amendments text,
this Court has held that the Constitution
directs judges to apply their best judgment in determining the proportionality of
fines, see, e.g., United States v. Bajakajian, 524 U.S. 321, 334336, 118 S.Ct. 2028,
141 L.Ed.2d 314 (1998), bail, see, e.g.,
Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96
L.Ed. 3 (1951), and other forms of punishment, including the imposition of a death
sentence, see, e.g., Coker v. Georgia, 433
U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d
982 (1977). It would be anomalous indeed to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but
not in the context of other forms of punishment, such as imprisonment. Solem v.
Helm, 463 U.S. 277, 289, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983). Rather, by broadly
prohibiting excessive sanctions, the Eighth
Amendment directs judges to exercise
their wise judgment in assessing the proportionality of all forms of punishment.
538 U.S. 33
103 S.Ct. 3001, and to exercise their judgment to give meaning to the Constitutions
broadly phrased protections. For example, the Due Process Clause directs judges
to employ proportionality reSview34 in assessing the constitutionality of punitive
damages awards on a case-by-case basis.
See, e.g., BMW of North America, Inc. v.
Gore, 517 U.S. 559, 562, 116 S.Ct. 1589, 134
L.Ed.2d 809 (1996). Also, although the
Sixth Amendment guarantees criminal defendants the right to a speedy trial, the
courts often are asked to determine on a
case-by-case basis whether a particular delay is constitutionally permissible or not.
See, e.g., Doggett v. United States, 505
U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520
(1992).2
The absence of a black-letter rule does

not disable judges from exercising their
discretion in construing the outer limits on
sentencing authority that the Eighth
Amendment imposes. After all, judges
are constantly called upon to draw TTT
lines in a variety of contexts, id., at 294,
Throughout most of the Nations historybefore guideline sentencing became so

prevalentfederal and state trial judges
imposed specific sentences pursuant to
grants of authority that gave them uncabined discretion within broad ranges. See
K. Stith & J. Cabranes, Fear of Judging:
Sentencing Guidelines in the Federal
Courts 9 (1998) (hereinafter Stith & Cabranes) (From the beginning of the Republic, federal judges were entrusted with
wide sentencing discretion); see also
Mistretta v. United States, 488 U.S. 361,
364, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
It was not unheard of for a statute to authorize a sentence ranging from one year
to life, for example. See, e.g., State v.
Perley, 86 Me. 427, 30 A. 74, 75 (1894)
(citing Maine statute that made robbery
punishable by imprisonment for life or any
term of years); In re Southard, 298 Mich.
Numerous other examples could be given of

situations in which courtsfaced with imprecise commandsmust make difficult decisions. See, e.g., Kyles v. Whitley, 514 U.S.
419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)
(reviewing whether undisclosed evidence was
material); Arizona v. Fulminante, 499 U.S.
279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)
(considering whether confession was coerced
and, if so, whether admission of the coerced
confession was harmless error); Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984) (addressing whether defense counsels performance was deficient
and whether any deficiency was prejudicial);
Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986) (assessing
whether prosecutorial misconduct deprived
defendant of a fair trial); Christensen v. Harris County, 529 U.S. 576, 589, 120 S.Ct. 1655,
146 L.Ed.2d 621 (2000) (SCALIA, J., concurring in part and concurring in judgment) (addressing whether an agencys construction of
a statute was reasonable ).
2.
538 U.S. 36
1193
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
75, 77, 298 N.W. 457 (1941) (The offense

of robbery armed is punishable by imprisonment for life or any term S 35of
years). In exercising their discretion,
sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishmentnamely, deterrence, incapacitation,
retribution, and rehabilitation. See Stith
& Cabranes 14. Likewise, I think it clear
that the Eighth Amendments prohibition
of cruel and unusual punishments expresses a broad and basic proportionality
principle that takes into account all of the
justifications for penal sanctions. It is
this broad proportionality principle that
would preclude reliance on any of the justifications for punishment to support, for
example, a life sentence for overtime parking. See Rummel v. Estelle, 445 U.S. 263,
274, n. 11, 100 S.Ct. 1133, 63 L.Ed.2d 382
(1980).
Accordingly, I respectfully dissent.
Justice BREYER, with whom Justice
STEVENS, Justice SOUTER, and Justice
GINSBURG join, dissenting.
The constitutional question is whether
the three strikes sentence imposed by
California upon repeat-offender Gary Ewing is grossly disproportionate to his
crime. Ante, at 1182, 1190 (plurality opinion). The sentence amounts to a real prison term of at least 25 years. The sentence-triggering criminal conduct consists
of the theft of three golf clubs priced at a
total of $1,197. See ante, at 1183. The
offender has a criminal history that includes four felony convictions arising out
of three separate burglaries (one armed).
Ante, at 1184. In Solem v. Helm, 463 U.S.
277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983),
the Court found grossly disproportionate a
somewhat longer sentence imposed on a
recidivist offender for triggering criminal
conduct that was somewhat less severe.
In my view, the differences are not determinative, and the Court should reach the
same ultimate conclusion here.
I
This Courts precedent sets forth a
framework for analyzing Ewings Eighth
Amendment claim. The Eighth Amendment forbids, as cruel and unusual punishments, prison S 36terms (including terms
of years) that are grossly disproportionate. Solem, supra, at 303, 103 S.Ct. 3001;
see Lockyer v. Andrade, ante, 538 U.S., at
71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
In applying the gross disproportionality
principle, courts must keep in mind that
legislative policy will primarily determine the appropriateness of a punishments severity, and hence defer to such
legislative policy judgments. Gore v.
1280, 2 L.Ed.2d 1405 (1958); see Harmelin v. Michigan, 501 U.S. 957, 998, 111
S.Ct. 2680, 115 L.Ed.2d 836 (1991) (KENNEDY, J., concurring in part and concurring in judgment); Solem, supra, at 289
290, 103 S.Ct. 3001; Rummel v. Estelle,
445 U.S. 263, 274276, 100 S.Ct. 1133, 63
L.Ed.2d 382 (1980); Weems v. United
States, 217 U.S. 349, 373, 30 S.Ct. 544, 54
L.Ed. 793 (1910). If courts properly respect those judgments, they will find that
the sentence fails the test only in rare
instances. Solem, supra, at 290, n. 16, 103
S.Ct. 3001; Harmelin, supra, at 1004, 111
S.Ct. 2680 (KENNEDY, J., concurring in
part and concurring in judgment); Rummel, supra, at 272, 100 S.Ct. 1133 ([S]uccessful challenges to the proportionality of
particular sentences have been exceedingly
rare). And they will only rarely find
it necessary to engage in extended analysis before rejecting a claim that a sentence is grossly disproportionate.
Harmelin, supra, at 1004, 111 S.Ct. 2680
concurring in judgment) (quoting Solem,
supra, at 290, n. 16, 103 S.Ct. 3001).
The plurality applies Justice KENNEDYs analytical framework in Harmelin,
supra, at 10041005, 111 S.Ct. 2680 (opinion concurring in part and concurring in
1194
judgment). Ante, at 11861187. And, for

present purposes, I will consider Ewings
Eighth Amendment claim on those terms.
But see ante, at 1191, n. 1 (STEVENS, J.,
dissenting). To implement this approach,
courts faced with a gross disproportionality claim must first make a threshold
comparison of the crime committed and
the sentence imposed. Harmelin, supra,
at 1005, 111 S.Ct. 2680 (KENNEDY, J.,
concurring in part and concurring in judgment). If a claim crosses that threshold
itself a rare occurrencethen the court
should compare the sentence at issue to
other sentences imposed on other criminals in the same, or in other, jurisdictions.
Solem, supra, at 290291, 103 S.Ct. 3001;
S 37Harmelin, 501 U.S., at 1005, 111 S.Ct.
2680 (KENNEDY, J., concurring in part
and concurring in judgment). The comparative analysis will validate or invalidate an initial judgment that a sentence is
grossly disproportionate to a crime. Ibid.
I recognize the warnings implicit in the
Courts frequent repetition of words such
as rare. Nonetheless I believe that the
case before us is a rare caseone in
which a court can say with reasonable
confidence that the punishment is grossly
disproportionate to the crime.
II
Ewings claim crosses the gross disproportionality threshold. First, precedent
makes clear that Ewings sentence raises a
serious disproportionality question. Ewing is a recidivist. Hence the two cases
most directly in point are those in which
the Court considered the constitutionality
of recidivist sentencing: Rummel and Solem. Ewings claim falls between these
two cases. It is stronger than the claim
presented in Rummel, where the Court
upheld a recidivists sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck
down a recidivist sentence as unconstitutional.
538 U.S. 36
Three kinds of sentence-related characteristics define the relevant comparative

spectrum: (a) the length of the prison
term in real time, i.e., the time that the
offender is likely actually to spend in prison; (b) the sentence-triggering criminal
conduct, i.e., the offenders actual behavior
or other offense-related circumstances;
and (c) the offenders criminal history.
See Rummel, supra, at 265266, 269, 276,
278, 280281, 100 S.Ct. 1133 (using these
factors); Solem, supra, at 290303, 103
S.Ct. 3001 (same). Cf. United States Sentencing Commission, Guidelines Manual
ch. 1, pt. A, intro., n. 5 (Nov.1987) (USSG)
(empirical study of summary reports of
some 40,000 convictions [and] a sample of
10,000 augmented presentence reports
leads to sentences based primarily upon
(a) offense characteristics and (b) offenders criminal record); see id., p. s. 3.
S 38In Rummel, the Court held constitutional (a) a sentence of life imprisonment
with parole available within 10 to 12
years, (b) for the offense of obtaining $120
by false pretenses, (c) committed by an
offender with two prior felony convictions
(involving small amounts of money). 445
U.S. 263, 100 S.Ct. 1133; ante, at 1185. In
Solem, the Court held unconstitutional (a)
a sentence of life imprisonment without
parole, (b) for the crime of writing a $100
check on a nonexistent bank account, (c)
committed by an offender with six prior
felony convictions (including three for burglary). 463 U.S. 277, 103 S.Ct. 3001; ante,
at 1186. Which of the three pertinent
comparative factors made the constitutional difference?
The third factor, prior record, cannot
explain the difference. The offenders prior record was worse in Solem, where the
Court found the sentence too long, than in
Rummel, where the Court upheld the sentence. The second factor, offense conduct,
cannot explain the difference. The nature
of the triggering offenseviewed in terms
of the actual monetary lossin the two
cases was about the same. The one critical factor that explains the difference in
538 U.S. 40
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
the outcome is the length of the likely

prison term measured in real time. In
Rummel, where the Court upheld the sentence, the state sentencing statute authorized parole for the offender, Rummel, after 10 or 12 years. 445 U.S., at 280, 100
S.Ct. 1133; id., at 293, 100 S.Ct. 1133
(Powell, J., dissenting). In Solem, where
the Court struck down the sentence, the
sentence required the offender, Helm, to
spend the rest of his life in prison.
Now consider the present case. The
third factor, offender characteristicsi.e.,
prior recorddoes not differ significantly
here from that in Solem. Ewings prior
record consists of four prior felony convictions (involving three burglaries, one with
a knife) contrasted with Helms six prior
felony convictions (including three burglaries, though none with weapons). The second factor, offense behavior, is worse than
that in Solem, but only to a degree. It
would be difficult to say that the actual
behavior itself here (shopSlifting)39 differs
significantly from that at issue in Solem
(passing a bad check) or in Rummel (obtaining money through false pretenses).
Rather the difference lies in the value of
the goods obtained. That difference, measured in terms of the most relevant feature
(loss to the victim, i.e., wholesale value)
and adjusted for the irrelevant feature of
inflation, comes down (in 1979 values) to
about $379 here compared with $100 in
Solem, or (in 1973 values) to $232 here
compared with $120.75 in Rummel. See
USSG 2B1.1, comment., n. 2(A)(i) (Nov.
2002) (loss to victim properly measures
value of goods unlawfully taken); U.S.
Dept. of Labor, Bureau of Labor Statistics,
Inflation and Consumer Spending, Inflation Calculator (Jan. 23, 2003), http://
www.bls.gov (hereinafter Inflation Calculator). Alternatively, if one measures the
inflation-adjusted value difference in terms
of the golf clubs sticker price, it comes
down to $505 here compared to $100 in
Solem, or $309 here compared to $120.75
in Rummel. See Inflation Calculator.
The difference in length of the real prison termthe first, and critical, factor in
1195
Solem and Rummelis considerably more

important.
Ewings
sentence
here
amounts, in real terms, to at least 25 years
without parole or good-time credits. That
sentence is considerably shorter than
Helms sentence in Solem, which amounted, in real terms, to life in prison. Nonetheless Ewings real prison term is more
than twice as long as the term at issue in
Rummel, which amounted, in real terms,
to at least 10 or 12 years. And, Ewings
sentence, unlike Rummels (but like
Helms sentence in Solem), is long enough
to consume the productive remainder of
almost any offenders life. (It means that
Ewing himself, seriously ill when sentenced at age 38, will likely die in prison.)
The upshot is that the length of the real
prison termthe factor that explains the
Solem /Rummel difference in outcome
places Ewing closer to Solem than to
Rummel, though the greater value of the
golf clubs that Ewing stole S 40moves Ewings case back slightly in Rummels direction. Overall, the comparison places
Ewings sentence well within the twilight
zone between Solem and Rummela zone
where the argument for unconstitutionality
is substantial, where the cases themselves
cannot determine the constitutional outcome.
Second, Ewings sentence on its face
imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct. See infra,
at 1198. I do not deny the seriousness of
shoplifting, which an amicus curiae tells
us costs retailers in the range of $30 billion
annually. Brief for California District Attorneys Association as Amicus Curiae 27.
But consider that conduct in terms of the
factors that this Court mentioned in Solemthe harm caused or threatened to
the victim or society, the absolute magnitude of the crime, and the offenders culpability. 463 U.S., at 292293, 103 S.Ct.
3001. In respect to all three criteria, the
sentence-triggering behavior here ranks
1196
well toward the bottom of the criminal

conduct scale.
The Solicitor General has urged us to
consider three other criteria: the frequency of the crimes commission, the
ease or difficulty of detection, and the
degree to which the crime may be deterred by differing amounts of punishment. Brief for United States as Amicus
Curiae 2425. When considered in terms
of these criteriaor at least the latter
twothe triggering conduct also ranks toward the bottom of the scale. Unlike, say,
drug crimes, shoplifting often takes place
in stores open to other customers whose
presence, along with that of store employees or cameras, can help to detect the
crime. Nor is there evidence presented
here that the law enforcement community
believes lengthy prison terms necessary
adequately to deter shoplifting. To the
contrary, well-publicized instances of shoplifting suggest that the offense is often
punished without any prison sentence at
all. On the other hand, shoplifting is a
frequently comSmitted41 crime; but frequency, standing alone, cannot make a
critical difference. Otherwise traffic offenses would warrant even more serious
punishment.
This case, of course, involves shoplifting
engaged in by a recidivist. One might
argue that any crime committed by a recidivist is a serious crime potentially warranting a 25year sentence. But this
Court rejected that view in Solem, and in
Harmelin, with the recognition that no
penalty is per se constitutional. Solem,
supra, at 290, 103 S.Ct. 3001; Harmelin,
501 U.S., at 1001, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment). Our cases make clear
that, in cases involving recidivist offenders,
we must focus upon the [offense] that
triggers the life sentence, with recidivism
playing a relevant, but not necessarily
determinative, role. Solem, supra, at 296,
n. 21, 103 S.Ct. 3001; see Witte v. United
States, 515 U.S. 389, 402, 403, 115 S.Ct.
2199, 132 L.Ed.2d 351 (1995) (the recidivist
538 U.S. 40
defendant is punished only for the offense

of conviction, which is considered to be
an aggravated offense because a repetitive
one (quoting Gryger v. Burke, 334 U.S.
728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683
(1948))). And here, as I have said, that
offense is among the less serious, while the
punishment is among the most serious.
Cf. Rummel, 445 U.S., at 288, 100 S.Ct.
1133 (Powell, J., dissenting) (overtime
parking violation cannot trigger a life sentence even for a serious recidivist).
Third, some objective evidence suggests
that many experienced judges would consider Ewings sentence disproportionately
harsh. The United States Sentencing
Commission (having based the federal Sentencing Guidelines primarily upon its review of how judges had actually sentenced
offenders) does not include shoplifting (or
similar theft-related offenses) among the
crimes that might trigger especially long
sentences for recidivists, see USSG
4B1.1 (Nov.2002) (Guideline for sentencing career offenders); id., ch. 1, pt. A,
intro., n. 5 (sentences based in part upon
Commissions review of summary reports
of some 40,000 convictions [and] a sample
of 10,000 augmented presentence reports); see also S 42infra, at 1198, nor did
Congress include such offenses among
triggering crimes when it sought sentences
at or near the statutory maximum for
certain recidivists, S.Rep. No. 98225, p.
175 (1983); 28 U.S.C. 994(h) (requiring
sentence at or near the maximum where
triggering crime is crime of violence or
drug related); 18 U.S.C. 3559(c) (grand
theft not among triggering or strike offenses under federal three strikes law);
see infra, at 1198. But see 28 U.S.C.
994(i)(1) (requiring a substantial term
of imprisonment for those who have a
history of two or more prior TTT felony
convictions).
Taken together, these three circumstances make clear that Ewings gross
disproportionality argument is a strong
one. That being so, his claim must pass
538 U.S. 44
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
the threshold test. If it did not, what

would be the function of the test? A
threshold test must permit arguably unconstitutional sentences, not only actually
unconstitutional sentences, to pass the
thresholdat least where the arguments
for unconstitutionality are unusually
strong ones. A threshold test that blocked
every ultimately invalid constitutional
claimeven strong oneswould not be a
threshold test but a determinative test.
And, it would be a determinative test that
failed to take account of highly pertinent
sentencing information, namely, comparison with other sentences, Solem, supra, at
291292, 298300, 103 S.Ct. 3001. Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way
of contrast, a threshold test makes the
assessment of constitutionality highly subjective. And, of course, so to transform
that threshold test would violate this
Courts earlier precedent. See 463 U.S.,
at 290, 291292, 103 S.Ct. 3001; Harmelin,
supra, at 1000, 1005, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment).
III
Believing Ewings argument a strong
one, sufficient to pass the threshold, I turn
to
the
comparative
analysis.
A
S 43comparison of Ewings sentence with
other sentences requires answers to two
questions. First, how would other jurisdictions (or California at other times, i.e.,
without the three strikes penalty) punish
the same offense conduct? Second, upon
what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical
punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i.e., the time
that an offender must actually serve.
Sentencing statutes often shed little
light upon real prison time. That is because sentencing laws normally set maximum sentences, giving the sentencing
1197
judge discretion to choose an actual sentence within a broad range, and because
many States provide good-time credits and
parole, often permitting release after, say,
one-third of the sentence has been served,
see, e.g., Alaska Stat. 33.20.010(a) (2000);
Conn. Gen.Stat. 187a (1998). Thus, the
statutory maximum is rarely the sentence
imposed, and the sentence imposed is rarely the sentence that is served. For the
most part, the parties briefs discuss sentencing statutes. Nonetheless, that discussion, along with other readily available
information, validates my initial belief that
Ewings sentence, comparatively speaking,
is extreme.
As to California itself, we know the following: First, between the end of World
War II and 1994 (when California enacted
the three strikes law, ante, at 1182), no one
like Ewing could have served more than 10
years in prison. We know that for certain
because the maximum sentence for Ewings crime of conviction, grand theft, was
for most of that period 10 years. Cal.Penal Code Ann. 484, 489 (West 1970);
see Cal. Dept. of Corrections, Offender
Information Services, Administrative Services Division, Historical Data for Time
Served by Male Felons Paroled from Institutions: 1945 Through 1981, p. 11 (1982)
(Table 10) (hereinafter Historical Data for
Time Served by California Felons), Lodging of Petitioner. From 1976 to 1994 (and
currently, absent application S 44of the three
strikes penalty), a Ewing-type offender
would have received a maximum sentence
of four years. Cal.Penal Code Ann. 489
(West 1999), 667.5(b) (West Supp.2002).
And we know that Californias habitual
offender laws did not apply to grand
theft. 644(a), (b) (West 1970) (repealed
1977). We also know that the time that
any offender actually served was likely far
less than 10 years. This is because statistical data show that the median time actually served for grand theft (other than
auto theft) was about two years, and 90
percent of all those convicted of that crime
served less than three or four years. His-
1198
torical Data for Time Served by California

Felons 11 (Table 10).
Second, statistics suggest that recidivists of all sorts convicted during that
same time period in California served a
small fraction of Ewings real-time sentence. On average, recidivists served
three to four additional (recidivist-related)
years in prison, with 90 percent serving
less than an additional real seven to eight
years. Id., at 22 (Table 21).
Third, we know that California has reserved, and still reserves, Ewing-type prison time, i.e., at least 25 real years in
prison, for criminals convicted of crimes
far worse than was Ewings. Statistics for
the years 1945 to 1981, for example, indicate that typical (nonrecidivist) male firstdegree murderers served between 10 and
15 real years in prison, with 90 percent of
all such murderers serving less than 20
real years. Id., at 3 (Table 2). Moreover,
California, which has moved toward a realtime sentencing system (where the statutory punishment approximates the time
served), still punishes far less harshly
those who have engaged in far more serious conduct. It imposes, for example,
upon nonrecidivists guilty of arson causing
great bodily injury a maximum sentence of
nine years in prison, Cal.Penal Code Ann.
451(a) (West 1999) (prison term of 5, 7,
or 9 years for arson that causes great
bodily injury); it imposes upon those
guilty of voluntary manslaughter a maximum sentence of 11 years, 193 (prison
term of 3, 6, or 11 years for voluntary
manSslaughter).45 It reserves the sentence
that it here imposes upon (former-burglarnow-golf-club-thief) Ewing for nonrecidivist, first-degree murderers. See 190(a)
(West Supp.2003) (sentence of 25 years to
life for first-degree murder).
As to other jurisdictions, we know the
following: The United States, bound by
the federal Sentencing Guidelines, would
impose upon a recidivist, such as Ewing,
a sentence that, in any ordinary case,
would not exceed 18 months in prison.
USSG 2B1.1(a) (Nov.1999) (assuming a
538 U.S. 44
base offense level of 6, a criminal history

of VI, and no mitigating or aggravating
adjustments); id., ch. 5, pt. A, Sentencing Table. The Guidelines, based in part
upon a study of some 40,000 actual federal sentences, see supra, at 1194, 1196,
reserve a Ewing-type sentence for Ewing-type recidivists who currently commit
such crimes as murder, 2A1.2; air piracy, 2A5.1; robbery (involving the discharge of a firearm, serious bodily injury,
and about $1 million), 2B3.1; drug offenses involving more than, for example,
20 pounds of heroin, 2D1.1; aggravated theft of more than $100 million,
2B1.1; and other similar offenses.
The Guidelines reserve 10 years of real
prison time (with good time)less than
40 percent of Ewings sentencefor Ewing-type recidivists who go on to commit,
for instance, voluntary manslaughter,
2A1.3; aggravated assault with a firearm (causing serious bodily injury and
motivated by money), 2A2.2; kidnaping, 2A4.1; residential burglary involving more than $5 million, 2B2.1; drug
offenses involving at least one pound of
cocaine, 2D1.1; and other similar offenses. Ewing also would not have been
subject to the federal three strikes law,
18 U.S.C. 3559(c), for which grand
theft is not a triggering offense.
With three exceptions, see infra, at
1199, we do not have before us information
about actual time served by Ewing-type
offenders in other States. We do know,
however, that the law would make it legally impossible for a Ewing-type offender to
serve more than 10 years in prison in 33
jurisdictions, as well as the federal courts,
see Appendix, S 46Part A, infra, more than
15 years in 4 other States, see Appendix,
Part B, infra, and more than 20 years in 4
additional States, see Appendix, Part C,
infra. In nine other States, the law might
make it legally possible to impose a sentence of 25 years or more, see Appendix,
Part D, infrathough that fact by itself,
of course, does not mean that judges have
538 U.S. 48
1199
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
actually done so. But see infra, at 1199.

I say might because the law in five of the
nine last mentioned States restricts the
sentencing judges ability to impose a term
so long that, with parole, it would amount
to at least 25 years of actual imprisonment.
See Appendix, Part D, infra.
We also know that California, the United States, and other States supporting
California in this case, despite every incentive to find someone else like Ewing who
will have to serve, or who has actually
served, a real prison term anywhere approaching that imposed upon Ewing, have
come up with precisely three examples.
Brief for United States as Amicus Curiae
2829, n. 13. The Government points to
Ex parte Howington, 622 So.2d 896 (Ala.
1993), where an Alabama court sentenced
an offender with three prior burglary convictions and two prior grand theft convictions to life for the theft of a tractortrailer. The Government also points to
State v. Heftel, 513 N.W.2d 397 (S.D.1994),
where a South Dakota court sentenced an
offender with seven prior felony convictions to 50 years imprisonment for theft.
And the Government cites Sims v. State,
107 Nev. 438, 814 P.2d 63 (1991), where a
Nevada court sentenced a defendant with
three prior felony convictions (including
armed robbery) and nine misdemeanor
convictions to life without parole for the
theft of a purse and wallet containing $476.
The first of these cases, Howington, is
beside the point, for the offender was eligible for parole after 10 years (as in Rummel), not 25 years (as here). Ala.Code
152228(e) (West 1982). The second
case, Heftel, is factually on point, but it is
not legally on point, for the South Dakota
courts did not consider the constitutionality of the sentence. 513 N.W.S2d,47 at 401.
The third case, Sims, is on point both
factually and legally, for the Nevada Supreme Court (by a vote of 3 to 2) found the
sentence constitutional. I concede that examplea single instance of a similar sen-
tence imposed outside the context of Californias three strikes law, out of a prison
population now approaching two million
individuals. U.S. Dept. of Justice, Office
of Justice Programs, Bureau of Justice
Statistics, Prison Statistics (Jan. 8, 2003),
http://www.ojp.usdoj.gov/bjs/prisons.htm
(available in Clerk of Courts case file).
The upshot is that comparison of other
sentencing practices, both in other jurisdictions and in California at other times
(or in respect to other crimes), validates
what an initial threshold examination suggested. Given the information available,
given the state and federal parties ability
to provide additional contrary data, and
given their failure to do so, we can assume
for constitutional purposes that the following statement is true: Outside the California three strikes context, Ewings recidivist sentence is virtually unique in its
harshness for his offense of conviction, and
by a considerable degree.
IV
This is not the end of the matter. California sentenced Ewing pursuant to its
three strikes law. That law represents a
deliberate effort to provide stricter punishments for recidivists. Cal.Penal Code
Ann. 667(b) (West 1999) (It is the intent
of the Legislature TTT to ensure longer
prison sentences and greater punishment
for those who commit a felony and have
been previously convicted of serious and/or
violent felony offenses); ante, at 1187.
And, it is important to consider whether
special criminal justice concerns related to
Californias three strikes policy might justify including Ewings theft within the
class of triggering criminal conduct (thereby imposing a severe punishment), even if
Ewings sentence would otherwise seem
disproportionately harsh. S 48Cf. Harmelin,
501 U.S., at 998999, 1001, 111 S.Ct. 2680
(noting the primacy of the legislature in
making sentencing policy).
I can find no such special criminal justice concerns that might justify this sen-
1200
tence. The most obvious potential justification for bringing Ewings theft within
the ambit of the statute is administrative.
California must draw some kind of workable line between conduct that will trigger,
and conduct that will not trigger, a three
strikes sentence. But the fact that a line
has to be drawn somewhere does not justify its being drawn anywhere. Pearce v.
Commissioner, 315 U.S. 543, 558, 62 S.Ct.
754, 86 L.Ed. 1016 (1942) (Frankfurter, J.,
dissenting). The statutes administrative
objective would seem to be one of separating more serious, from less serious, triggering criminal conduct. Yet the statute
does not do that job particularly well.
The administrative line that the statute
draws separates felonies from misdemeanors. See Brief for Respondent 6
(The California statute relies, fundamentally, on traditional classifications of certain crimes as felonies). Those words
suggest a graduated difference in degree.
But an examination of how California applies these labels in practice to criminal
conduct suggests that the offenses do not
necessarily reflect those differences. See
United States v. Watson, 423 U.S. 411,
438441, 96 S.Ct. 820, 46 L.Ed.2d 598
(1976) (Marshall, J., dissenting) (felony/misdemeanor distinction often reflects
history, not logic); Rummel, 445 U.S., at
284, 100 S.Ct. 1133 (The most casual review of the various criminal justice systems now in force in the 50 States of the
Union shows that the line dividing felony
theft from petty larceny, a line usually
based on the value of the property taken,
varies markedly from one State to another). Indeed, California uses those words
in a way unrelated to the seriousness of
offense conduct in a set of criminal statutes called wobblers, see ante, at 1183,
one of which is at issue in this case.
Most wobbler statutes classify the
same criminal conduct either as a felony or
as a misdemeanor, depending upon S 49the
actual punishment imposed, Cal.Penal
Code Ann. 17(a), (b) (West 1999); ante,
at 1183, which in turn depends primarily
538 U.S. 48
upon whether the rehabilitation of the

convicted defendant either does or does
not require (or would or would not be
adversely affected by) incarceration in a
state prison as a felon. In re Anderson,
69 Cal.2d 613, 664665, 73 Cal.Rptr. 21,
447 P.2d 117, 152 (1968) (Tobriner, J., concurring in part and dissenting in part);
ante, at 1189. In such cases, the felony/misdemeanor classification turns primarily upon the nature of the offender, not
the comparative seriousness of the offenders conduct.
A subset of wobbler statutes, including
the petty theft with a prior statute,
Cal.Penal Code Ann. 666 (West Supp.
2002), defining the crime in the companion
case, Lockyer v. Andrade, ante, 538 U.S.,
at 63, 123 S.Ct. 1166, authorizes the treatment of otherwise misdemeanor conduct,
see Cal.Penal Code Ann. 490 (West
1999), as a felony only when the offender
has previously committed a property
crime. Again, the distinction turns upon
characteristics of the offender, not the specific offense conduct at issue.
The result of importing this kind of distinction into Californias three strikes statute is a series of anomalies. One anomaly
concerns the seriousness of the triggering
behavior. Wobbler statutes cover a wide
variety of criminal behavior, ranging from
assault with a deadly weapon, 245, vehicular manslaughter, 193(c)(1), and money
laundering, 186.10(a), to the defacement
of property with graffiti, 594(b)(2)(A)
(West Supp.2002), or stealing more than
$100 worth of chickens, nuts, or avocados,
487(b)(1)(A) (West Supp.2003); 489
(West 1999). Some of this behavior is
obviously less serious, even if engaged in
twice, than other criminal conduct that
California statutes classify as pure misdemeanors, such as reckless driving, Cal.
Veh.Code Ann. 23103 (West Supp.2003);
23104(a) (West 2000) (reckless driving
causing bodily injury), the use of force or
threat of force to interfere with anothers
civil rights, Cal.Penal Code S 50Ann. 422.6
538 U.S. 51
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
(West 1999), selling poisoned alcohol,

347b, child neglect, 270, and manufacturing or selling false government documents with the intent to conceal true citizenship, 112(a) (West Supp.2002).
Another anomaly concerns temporal order. An offender whose triggering crime
is his third crime likely will not fall within
the ambit of the three strikes statute provided that (a) his first crime was chicken
theft worth more than $100, and (b) he
subsequently graduated to more serious
crimes, say, crimes of violence. That is
because such chicken theft, when a first
offense, will likely be considered a misdemeanor. A similar offender likely will fall
within the scope of the three strikes statute, however, if such chicken theft was his
third crime. That is because such chicken
theft, as a third offense, will likely be
treated as a felony.
A further anomaly concerns the offenders criminal record. Californias wobbler petty theft with a prior statute, at
issue in Lockyer v. Andrade, ante, 538
U.S., at 63, 123 S.Ct. 1166, classifies a
petty theft as a felony if, but only if, the
offender has a prior record that includes at
least one conviction for certain theft-related offenses. Cal.Penal Code Ann. 666
(West Supp.2002). Thus a violent criminal
who has committed two violent offenses
and then steals $200 will not fall within the
ambit of the three strikes statute, for his
prior record reveals no similar property
crimes. A similar offender will fall within
the scope of the three strikes statute, however, if that offender, instead of having
committed two previous violent crimes, has
committed one previous violent crime and
one previous petty theft. (Ewings conduct would have brought him within the
realm of the petty theft statute prior to
1976 but for inflation.)
At the same time, it is difficult to find
any strong need to define the lower boundary as the State has done. The three
strikes statute itself, when defining prior
strikes, simply lists the kinds of serious
criminal conduct that falls within the defi-
1201
nition of a strike. 667.5(c) (listing violent felonSies);51 1192.7(c) (West Supp.

2003) (listing serious felonies). There is
no obvious reason why the statute could
not enumerate, consistent with its purposes, the relevant triggering crimes.
Given that possibility and given the anomalies that result from Californias chosen
approach, I do not see how California can
justify on administrative grounds a sentence as seriously disproportionate as Ewings. See Parts II and III, supra.
Neither do I see any other way in which
inclusion of Ewings conduct (as a triggering crime) would further a significant
criminal justice objective. One might argue that those who commit several property crimes should receive long terms of
imprisonment in order to incapacitate
them, i.e., to prevent them from committing further crimes in the future. But that
is not the object of this particular three
strikes statute. Rather, as the plurality
says, California seeks to reduce serious
and violent crime. Ante, at 1187 (quoting Ardaiz, Californias Three Strikes Law:
History, Expectations, Consequences, 32
McGeorge L.Rev. 1 (2000) (emphasis added)). The statutes definitions of both
kinds of crime include crimes against the
person, crimes that create danger of physical harm, and drug crimes. See, e.g.,
Cal.Penal Code Ann. 667.5(c)(1) (West
Supp.2002), 1192.7(c)(1) (West Supp.
2003) (murder or voluntary manslaughter);
667.5(c)(21)
(West
Supp.2002),
1192.7(c)(18) (West Supp.2003) (first-degree burglary); 1192.7(c)(24) (selling or
giving or offering to sell or give heroin or
cocaine to a minor). They do not include
even serious crimes against property, such
as obtaining large amounts of money, say,
through theft, embezzlement, or fraud.
Given the omission of vast categories of
property crimesincluding grand theft
(unarmed)from the strike definition,
one cannot argue, on property-crime-relat-
1202
538 U.S. 51
ed incapacitation grounds, for inclusion of

Ewings crime among the triggers.
tioneven if only at sentencings outer

bounds.
Nor do the remaining criminal law objectives seem relevant. No one argues for
Ewings inclusion within the ambit S 52of the
three strikes statute on grounds of retribution. Cf. Vitiello, Three Strikes: Can
We Return to Rationality? 87 J.Crim. L. &
C. 395, 427 (1997) (Californias three
strikes law, like other [h]abitual offender
statutes[, is] not retributive because the
term of imprisonment is imposed without
regard to the culpability of the offender or
[the] degree of social harm caused by the
offenders behavior, and has little to do
with the gravity of the offens[e]). For
reasons previously discussed, in terms of
deterrence, Ewings 25year term
amounts to overkill. See Parts II and III,
supra. And rehabilitation is obviously
beside the point. The upshot is that, in
my view, the State cannot find in its three
strikes law a special criminal justice need
sufficient to rescue a sentence that other
relevant considerations indicate is unconstitutional.
A case-by-case approach can nonetheless

offer guidance through example. Ewings
sentence is, at a minimum, 2 to 3 times the
length of sentences that other jurisdictions
would impose in similar circumstances.
That sentence itself is sufficiently long to
require a typical offender to spend virtually all the remainder of his active life in
prison. These and the S 53other factors that
I have discussed, along with the questions
that I have asked along the way, should
help to identify gross disproportionality
in a fairly objective wayat the outer
bounds of sentencing.
V
Justice SCALIA and Justice THOMAS
argue that we should not review for gross
disproportionality a sentence to a term of
years. Ante, at 1190 (SCALIA, J., concurring in judgment); ante, at 1191 (THOMAS, J., concurring in judgment). Otherwise, we make it too difficult for legislators
and sentencing judges to determine just
when their sentencing laws and practices
pass constitutional muster.
I concede that a bright-line rule would
give legislators and sentencing judges
more guidance. But application of the
Eighth Amendment to a sentence of a
term of years requires a case-by-case approach. And, in my view, like that of the
plurality, meaningful enforcement of the
Eighth Amendment demands that applica1.
Throughout Appendix, Parts AD, the penalties listed for each jurisdiction are those pertaining to imprisonment and do not reflect
In sum, even if I accept for present

purposes the pluralitys analytical framework, Ewings sentence (life imprisonment
with a minimum term of 25 years) is grossly disproportionate to the triggering offense conductstealing three golf clubs
Ewings recidivism notwithstanding.
For these reasons, I dissent.
APPENDIX TO OPINION
OF BREYER, J.
A
Thirty-three jurisdictions, as well as the
federal courts, have laws that would make
it impossible to sentence a Ewing-type offender to more than 10 years in prison: 1
Federal: 12 to 18 months. USSG
2B1.1 (Nov.1999); id., ch. 5, pt. A, Sentencing Table.
Alaska: three to five years; presumptive term of three years. Alaska Stat.
11.46.130(a)(1), (c), 12.55.125(e) (2000).
Arizona: four to six years; presumptive
sentence of five years. Ariz.Rev.Stat.
Ann. 13604(C), 131802(E) (West
2001).
Connecticut: 1 to 10 years. Conn. Gen.
Stat. 53a35a(6), 53a40(j), 53a
124(a)(2) (2001).
any possible fines or other forms of penalties
applicable under the laws of the jurisdiction.
538 U.S. 55
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
1203
APPENDIX TO OPINION OF
BREYER, J.Continued
BREYER, J.Continued
Delaware: not more than two years.

Del.Code Ann., Tit. 11, 840(d) (Supp.
2000); 4205(b)(7) (1995). Recidivist offender penalty not applicable. See 4214;
Buckingham v. State, 482 A.2d 327 (Del.
1984).
that this case is factually distinguishable

from cases in which the Idaho courts have
declined to adhere to the general rule.
See, e.g., Brandt, supra, at 343, 344, 715
P.2d, at 1013, 1014 (three separately
charged property offenses involving three
separate homes and different victims committed during a two-month period);
State v. Mace, 133 Idaho 903, 907, 994 P.2d
1066, 1070 (App.2000) (unrelated crimes
(grand theft and DUI) committed on different dates in different counties); State v.
Smith, 116 Idaho 553, 560, 777 S 55P.2d
1226, 1233 (App.1989) (separate and distinguishable crimes committed on different
victims in different counties).
District of Columbia: not more than 10

years. D.C.Code Ann. 223212(a) (West
2001). Recidivist offender penalty S 54not
applicable. See 221804a(c)(2) (West
2001) (amended 2001).
Florida: not more than 10 years. Fla.
Stat. Ann. 775.084(1)(a), (4)(a)(3) (West
2000) (amended 2002); 812.014(c)(1)
(West 2000).
Georgia: 10 years. Ga.Code Ann. 16
812(a)(1) (1996); 17107(a) (Supp.
1996).
Hawaii: 20 months.
Haw.Rev.Stat.
708831(1)(b), 706606.5(1)(a)(iv), (7)(a)
(Supp.2001).
Idaho: 1 to 14 years. Idaho Code
182403, 182407(b)(1), 182408(2)(a)
(19481997). Recidivist/habitual offender
penalty of five years to life in prison, 19
2514, likely not applicable. Idaho has a
general rule that convictions entered the
same day or charged in the same information should count as a single conviction for
purposes of establishing habitual offender
status. State v. Harrington, 133 Idaho
563, 565, 990 P.2d 144, 146 (App.1999)
(quoting State v. Brandt, 110 Idaho 341,
344, 715 P.2d 1011, 1014 (App.1986)).
However, the nature of the convictions in
any given situation must be examined to
make certain that [this] general rule is
appropriate. Ibid. In this case, Ewings
prior felony convictions stemmed from acts
committed at the same apartment complex,
and three of the four felonies were committed within a day of each other; the
fourth offense was committed five weeks
earlier. See App. 6; Tr. 4546 (Information, Case No. NA01834301 (Cal.Super.Ct.) (available in Clerk of Courts case
file)). A review of Idaho case law suggests
Illinois: two to five years. Ill. Comp.

Stat., ch. 730, 5/581(a)(6) (Supp.2001);
ch. 720, 5/161(b)(4). Recidivist offender penalty not applicable. 5/33B1(a)
(2000).
Indiana: 18 months (with not more than
18 months added for aggravating circumstances). Ind.Code 354342(a) (1993);
355027(a). Recidivist offender penalty not applicable.
See 355028
(amended 2001).
Iowa: three to five years. Iowa Code
Ann. 714.2(2), 902.9(5)(West Supp.
2002); 902.8 (West 1994).
Kansas: 9 to 11 months. Kan. Stat.
Ann. 213701(b)(2), 214704(a) (1995).
Recidivist offender penalty not applicable.
See 214504(e)(3).
Kentucky: 5 to 10 years. Ky.Rev.Stat.
Ann. 514.030(2) (Lexis Supp.2002);
532.060(2)(c), (d), 532.080(2), (5) (Lexis
1999).
Maine: less than one year. Me.Rev.
Stat. Ann., Tit. 17A, 353 (West 1983);
362(4)(B) (West Supp.2000) (amended
2001); 1252(2)(D) (West 1983 and Supp.
2002). Recidivist offender penalty not applicable. See 1252(4A) (West Supp.
2000) (amended 2001).
Massachusetts: not more than five
years. Mass. Gen. Laws, ch. 266, 30(1)
1204
538 U.S. 55
BREYER, J.Continued
BREYER, J.Continued
(West 2000). Recidivist offender penalty

not applicable. See ch. 279, 25 (West
1998); Commonwealth v. Hall, 397 Mass.
466, 468, 492 N.E.2d 84, 85 (1986).
12.13209(1), (2)(c) (1997) (amended

2001).
Minnesota: not more than five years.

Minn.Stat. 609.52, subd. 3(3)(a) (2002).
Recidivist offender penalty not applicable.
See 609.1095, subd. 2.
Mississippi: not more than five years.
Miss.Code Ann. 971741(1)(a) (Lexis
19732000). Recidivist offender penalty
not applicable. See 991981.
Nebraska: not more than five years.
Neb.Rev.Stat. 28105(1) (2000 Cum.
Supp.); 28518(2) (1995). Recidivist offender penalty not applicable. See 29
2221(1).
S 56New Jersey: Extended term of between 5 to 10 years (instead of three to
five years, N.J. Stat. Ann. 2C:436
(1995)),
2C:437(a)(4)
(Supp.2002),
whether offense is treated as theft,
2C:202(b)(2)(a),
or
shoplifting,
2C:2011(b), (c)(2), because, even if
Ewings felonies are regarded as one predicate crime, Ewing has been separately
convicted and sentenced for at least one
other crime for which at least a 6month
sentence was authorized, 2C:443(a);
2C:444(c) (1995).
New Mexico: 30 months. N.M. Stat.
Ann. 301620(B)(3) (1994); 3118
15(A)(6) (2000); 311817(B) (2000)
(amended 2002).
New York: three to four years. N.Y.
Penal Law 70.06(3)(e) (West 1998);
155.30 (West 1999).
North Carolina: 4 to 25 months (with
exact sentencing range dependent on details of offenders criminal history). N.C.
Gen.Stat. 15A1340.14, 15A1340.17(c),
(d), 1472(a) (2001). Recidivist offender
penalty not applicable. See 147.1, 14
7.6.
North Dakota: not more than 10 years.
N.D. Cent.Code 12.12305(2)(a) (1997);
Ohio: 6 to 12 months. Ohio Rev.Code

Ann. 2913.02(B)(2), 2929.14(A)(5) (West
Supp.2002). No general recidivist statute.
Oregon: not more than five years. Ore.
Rev.Stat. 161.605 (1997); Ore.Rev.Stat.
Ann. 164.055(1)(a), (3) (Supp.1998). No
general recidivist statute.
Pennsylvania: not more than five years
(if no more than one prior theft was retail
theft); otherwise, not more than seven
years. Pa. Stat. Ann., Tit. 18, 1103(3),
1104(1)
(Purdon
1998);
3903(b),
3929(b)(1)(iii)-(iv) (Purdon Supp.2002);
3921 (Purdon 1983). Recidivist offender
penalty not applicable. See 42 Pa. Cons.
Stat. 9714(a)(1) (1998).
S 57Rhode Island: not more than 10
years.
R.I. Gen. Laws 11415(a)
(2002). Recidivist offender penalty not applicable. See 121921(a).
South Carolina: not more than five
years. S.C.Code Ann. 161330, 16
13110(B)(2) (West 2001 Cum.Supp.). Recidivist offender penalty not applicable.
See 172545.
Tennessee: four to eight years. Tenn.
Code Ann. 3914105(3), 4035
106(a)(1), (c), 4035112(b)(4) (1997).
Utah: not more than five years. Utah
Code Ann. 763203(3) (1999) (amended
2000); 766412(1)(b)(i) (1999). Recidivist offender penalty not applicable. See
763203.5 (Supp.2002).
Washington: not more than 14 months
(with exact sentencing range dependent on
details of offender score), Wash. Rev.Code
9A.56.040(1)(a),
(2)
(2000);
9.94A.510(1), 9.94A.515, 9.94A.525 (2003
Supp. Pamphlet); maximum sentence of
five
years,
9A.56.040(1)(a),
(2),
9A.20.021(1)(c) (2000). Recidivist offender
penalty
not
applicable.
See
9.94A.030(27), (31) (2000); 9.94A.570
(2003 Supp. Pamphlet).
538 U.S. 59
1205
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
BREYER, J.Continued
BREYER, J.Continued
Wyoming: not more than 10 years.

Wyo. Stat. Ann. 63404(a)(i) (Michie
2001). Recidivist offender penalty not applicable. See 610201(a).
Arkansas: 3 to 20 years. Ark.Code

Ann. 536103(b)(2)(A) (1997); 54
501(a)(2)(D), (e)(1) (1997) (amended 2001).
Eligible for parole after serving one-third
of the sentence. 54501 (1997); 16
93608 (1987).
B
In four other States, a Ewing-type offender could not have received a sentence
of more than 15 years in prison:
Colorado: 4 to 12 years for extraordinary aggravating circumstances (e.g., defendant on parole for another felony at the
time of commission of the triggering offense).
Colo.Rev.Stat.
181
105(1)(a)(V)(A), 181105(9)(a)(II), 184
401(2)(c) (2002). Recidivist offender penalty not applicable.
See 1613
101(f)(1.5), (2) (2001).
Maryland: not more than 15 years.
Md. Ann.Code, Art. 27, 342(f)(1) (1996)
(repealed 2002). Recidivist offender penalty not applicable. See 643B.
S 58New Hampshire: not more than 15
years. N.H. Stat. Ann. 637:11(I)(a),
651:2(II)(a) (West Supp.2002). Recidivist
offender penalty not applicable. See
651:6(I)(c).
Wisconsin: not more than 11 years (at
the time of Ewings offense). Wis. Stat.
Ann. 939.50(3)(e) (West Supp.2002);
939.62(1)(b), (2), 943.20(3)(b) (West
1996) (amended 2001). Wisconsin subsequently amended the relevant statutes so
that a Ewing-type offender would only be
eligible for a sentence of up to three years.
See
939.51(3)(a),
943.20(3)(a),
939.62(1)(a) (West Supp.2003). And effective February 1, 2003, such an offender is
eligible for a sentence of only up to two
years. See 939.51(3)(a), 943.20(3)(a),
939.62(1)(a).
Missouri: not more than 20 years. Mo.

Rev.Stat.
558.016(7)(3)
(2000);
570.030(3)(1) (2000) (amended 2002).
Eligible for parole after 15 years at the
latest. 558.011(4)(1)(c).
Texas: 2 to 20 years. Tex. Penal Code
Ann. 12.33(a), 12.35(c)(2)(A) (1994);
12.42(a)(3), 31.03(e)(4)(D) (Supp.2003).
Eligible for parole after serving one-fourth
of sentence.
Tex. Govt.Code Ann.
508.145(f) (Supp.2003).
Virginia: statutory range of 1 to 20
years (or less than 12 months at the discretion of the jury or court following bench
trial), Va.Code Ann. 18.295 (Supp.2002),
but discretionary sentencing guideline
ranges established by the Virginia Sentencing Commission, 17.1805, 19.2
298.01 (2000), with a maximum of 6 years,
3 months, to 15 years, 7 months, see Virginia Criminal Sentencing Commission, Virginia Sentencing Guidelines Manual, LarcenySection C RecommendaStion59 Table
(6th ed.2002) (with petitioner likely falling
within the discretionary guideline range of
2 years, 1 month, to 5 years, 3 months, see
Brief for Petitioner 33, n. 25). Recidivist
offender penalty not applicable. See
19.2297.1 (2000).
D
C
In four additional States, a Ewing-type
offender could not have been sentenced to
more than 20 years in prison:
In nine other States, the law might

make it legally possible to impose a sentence of 25 years or more upon a Ewingtype offender. But in five of those nine
States,2 the offender would be parole-eligible before 25 years:
But see discussion of relevant sentencing

and parole-eligibility provisions in Louisiana,
Michigan, Oklahoma, and South Dakota, infra, at 1206, 1207.
2.
1206
538 U.S. 59
BREYER, J.Continued
BREYER, J.Continued
Alabama: life or any term of not less

than 20 years. Ala.Code 13A59(c)(2)
(Lexis Supp.2002); 13A83(a), (c)
(1994). Eligible for parole after the lesser
of one-third of the sentence or 10 years.
152228(e) (1995).
first conviction by imprisonment for a

maximum term of 5 years or more,
769.12(1)(a) (West 2000). The larceny
for which Ewing was convicted was, under
Michigan law, a felony punishable by imprisonment for not more than 5 years.
750.356(3)(a) (West Supp.2002). Eligible
for parole following minimum term set by
sentencing judge. 769.12(4) (West 2000).
Louisiana: Louisiana courts could have

imposed a sentence of life without the possibility of parole at the time of Ewings
offense. La. Stat. Ann. 14:67.10(B)(1),
14:2(4), and (13)(y) (West Supp.2003);
15:529.1(A)(1)(b)(ii) and (c)(i)-(ii) (West
1992) (amended 2001). Petitioner argues
that, despite the statutory authority to impose such a sentence, Louisiana courts
would have carefully scrutinized his life
sentence, as they had in other cases involving recidivists charged with a nonviolent
crime. Brief for Petitioner 3536, n. 29;
see Brief for Families Against Mandatory
Minimums as Amicus Curiae 2425, and n.
21; State v. Hayes, 981526, p. 4 (La.
App.6/25/99), 739 So.2d 301, 303304 (holding that a life sentence was impermissibly
excessive for a defendant convicted of theft
of over $1,000, who had a prior robbery
conviction). But see Brief for Respondent
4546, n. 12 (contesting petitioners argument). Louisiana has amended its recidivist statute to require that the triggering
offense be a violent felony, and that the
offender have at least two prior violent
felony convictions to be eligible for a life
sentence.
La.
Stat.
S 60Ann.
15:529.1(A)(1)(b)(ii) (West Supp.2003).
Under current law, a Ewing-type offender
would face a sentence of 62/3 to 20 years.
14:67.10(B)(1), 15:529.1(A)(b)(i).
Michigan: imprisonment for life or for
a lesser term, Mich. Comp. Laws Ann.
769.12(1)(a) (West 2000) (instead of not
more than 15 years, 769.12(1)(b), as
petitioner contends, see Brief for Petitioner 34, n. 26; Brief for Families Against
Mandatory Minimums as Amicus Curiae
1617, n. 15, 2223, n. 20), because the
triggering offense is punishable upon a
Montana: 5 to 100 years. Mont.Code

Ann. 456301(7)(b) (1999); 4618
501, 4618502(1) (2001). A Ewing-type
offender would not have been subject to a
minimum term of 10 years in prison (as
the State suggests, Brief for Respondent
44) because Ewing does not meet the requirements of 4618502(2) (must be a
persistent felony offender, as defined in
4618501, at the time of the offenders
previous felony conviction). See Reply
Brief for Petitioner 18, n. 14. Eligible for
parole after one-fourth of the term. 46
23201(2).
Nevada: life without the possibility of
parole, or life with the possibility of parole [after serving] 10 years, or a definite term of 25 years, with eligibility for
parole [after serving] 10 years. Nev.Rev.
Stat. 207.010(1)(b)(1)-(3) (1995).
Oklahoma: not less than 20 years (at the
time of Ewings offense). Okla. Stat., Tit.
21, 51.1(B) (West Supp.2000) (amended
in 2001 to four years to life, 51.1(C)
(West 2001)); 1704 (West 1991) (amended 2001). Eligible for parole after serving
one-third of sentence. Tit. 57, 332.7(B)
(West S 612001). Thus, assuming a sentence
to a term of years of up to 100 years (as in
Montana, see supra, at 1206), parole eligibility could arise as late as after 33 years.
South Dakota: maximum penalty of life
imprisonment, with no minimum term.
S.D. Codified Laws 2278 (1998);
2230A17(1) (Supp.2002). Eligible for
parole after serving one-half of sentence.
24155(3) (1998). Thus, assuming a
sentence to a term of years of up to 100
538 U.S. 62
1207
EWING v. CALIFORNIA
Cite as 123 S.Ct. 1179 (2003)
BREYER, J.Continued
BREYER, J.Continued
years (as in Montana, see supra, at 1206),

parole eligibility could arise as late as after
50 years.
more than 1 year in jail). 61313(a).

Under West Virginias habitual offender
statute, a felon twice before convicted TTT
of a crime punishable by confinement in a
penitentiary TTT shall be sentenced to TTT
life [imprisonment], 611118(c), with
parole eligibility after 15 years, 6212
13(c). Amicus curiae on behalf of petitioner notes that, in light of existing statelaw precedents, West Virginia courts
would not countenance a sentence of life
without the possibility of parole for 25
years for shoplifting golf clubs. Brief for
Families Against Mandatory Minimums as
Amicus S 62Curiae 2526 (citing State v.
Barker, 186 W.Va. 73, 7475, 410 S.E.2d
712, 713714 (1991) (per curiam); and
State v. Deal, 178 W.Va. 142, 146147, 358
S.E.2d 226, 230231 (1987)). But see Brief
for Respondent 45, n. 11 (contesting that
argument).
Vermont: up to and including life, Vt.

Stat. Ann., 11 (1998), or not more than
10 years, Tit. 13, 2501; State v. Angelucci, 137 Vt. 272, 289290, 405 A.2d 33, 42
(1979) (court has discretion to sentence
habitual offender to the sentence that is
specified for grand larceny alone). Eligible for parole after six months. Tit. 28,
501 (2000) (amended 2001).
West Virginia: Petitioner contends that
he would only have been subject to a misdemeanor sentence of not more than 60
days for shoplifting, W. Va.Code 61
3A1, 613A3(a)(2) (2000); Brief for Petitioner 31, n. 19, 3334, n. 25. However, a
Ewing-type offender could have been
charged with grand larceny, see State ex
rel. Chadwell v. Duncil, 196 W.Va. 643,
647648, 474 S.E.2d 573, 577578 (1996)
(prosecutor has discretion to charge defendant with either shoplifting or grand larceny), a felony punishable by imprisonment
in the state penitentiary for 1 to 10 years
(or, at the discretion of the trial court, not
FLOYD v. STATE
Cite as 87 So.3d 45 (Fla.App. 1 Dist. 2012)
Fla.
45

Antonio Demetrius FLOYD, Appellant,
v.
STATE of Florida, Appellee.
No. 1D111983.
District Court of Appeal of Florida,
First District.
While the Eighth Amendment does

not foreclose the possibility that juveniles
who commit non-homicide crimes will remain in prison for life, states are foreclosed from making the judgment at the outset
that those offenders will never be fit to
reenter society. U.S.C.A. Const.Amend. 8.
April 12, 2012.

Rehearing Denied May 8, 2012.
Background: Juvenile defendant was convicted in the Circuit Court, Escambia
County, John T. Parnham, J., of two
counts of armed robbery with a firearm
and grand theft auto, was initially sentenced to life in prison on robbery counts,
but later received consecutive forty-year
sentences for the robberies. Defendant appealed.
Holding: The District Court of Appeal
held that the combined eighty-year sentences were cruel and unusual punishment
as the functional equivalent of a life sentence without parole.
Reversed and remanded for resentencing.
1. Robbery O30
Sentencing and Punishment O1508,
1607
Consecutive forty-year sentences for
armed robbery by 17-year old defendant
were cruel and unusual punishment as the
functional equivalent of a life sentence
without parole for a juvenile convicted of
non-homicide offenses; even if defendant
received the maximum amount of gain
time, the earliest possible release was at
age eighty-five, the combined eighty-year
sentence exceeded defendants life expectancy and would not provide a meaningful
or realistic opportunity to obtain release,
and state impermissibly judged defendant
unfit to reenter society. U.S.C.A. Const.
Amend. 8; Wests F.S.A. 921.002(1)(e).
Nancy A. Daniels, Public Defender, and

Glen P. Gifford, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and
Therese A. Savona, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, Antonio Demetrius Floyd, argues that his combined eighty-year sentence for two counts of armed robbery
violates the prohibition against cruel and
unusual punishment because it constitutes
the functional equivalent of a life sentence
without parole for a juvenile convicted of a
nonhomicide offense, which was held to be
unconstitutional in Graham v. Florida,
U.S. , 130 S.Ct. 2011, 176 L.Ed.2d 825
(2010). Finding merit in Appellants argument, we reverse and remand for resentencing.
Appellant was seventeen years of age in
1998 when he committed grand theft auto
and two counts of armed robbery with a
firearm, which, according to the prosecutors description during the resentencing
hearing, was a pellet gun that was realistic looking. The trial court initially sentenced Appellant to life imprisonment on
the armed robbery counts. After Graham
was issued more than a decade later, the
trial court resentenced Appellant to consecutive forty-year sentences on the two
46
Fla.
87 SOUTHERN REPORTER, 3d SERIES
armed robbery counts. While his appeal

was pending, Appellant filed a motion to
correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2),
wherein he raised the argument he now
raises on appeal. The trial court denied
the motion, citing Graham for the proposition that the Eighth Amendment does not
require the State to release a juvenile
defendant who commits a nonhomicide offense during his or her natural life.
In Graham, the United States Supreme
Court addressed the constitutionality of a
life without parole sentence for a juvenile
who was sixteen when he committed
armed burglary with assault or battery
and attempted armed robbery. The Court
held that the Eighth Amendment forbids a
sentence of life without parole for a juvenile offender who commits a nonhomicide
offense. 130 S.Ct. at 2030. In doing so,
the Court explained that while a state is
not required to guarantee eventual freedom to a juvenile offender convicted of a
nonhomicide offense, it must give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.
Id. It also set forth that while the Eighth
Amendment does not foreclose the possibility that juveniles convicted of nonhomicide crimes will remain behind bars for
life, it does forbid States from making the
judgment at the outset that those offenders never will be fit to reenter society.
Id.
Since Graham was issued, we have reviewed two lengthy term-of-years sentences for juveniles who committed nonhomicide crimes. In Thomas v. State, 78
So.3d 644, 646 (Fla. 1st DCA 2011), we
noted that the Graham holding was limited to those juveniles who were sentenced
to life without parole for nonhomicide
crimes. Although we agreed that, at some
point, a term-of-years sentence may be-
come the functional equivalent of a life

sentence, we rejected the appellants argument that his fifty-year concurrent sentences met that standard because, as found
by the trial court, the appellant would be
in his late sixties when he was released
from prison, if he was required to serve
the entirety of his sentence. 78 So.3d at
646. In Gridine v. State, 89 So.3d 909,
2011 WL 6849649 (Fla. 1st DCA 2011),
while again noting that, at some point, a
term-of-years sentence may become the
functional equivalent of a life sentence, we
rejected the argument that a seventy-year
sentence was unconstitutional.
[1, 2] In this case, we are faced with a
situation where Appellant, if he serves the
entirety of his sentence, will be ninetyseven when he is released. Even if Appellant received the maximum amount of gain
time, the earliest he would be released is
at age eighty-five. See 921.002(1)(e),
Fla. Stat. (1998) (providing that parole is
not applied to defendants sentenced under
the Criminal Punishment Code, that sentences in Florida reflect the length of actual time to be served, shortened only by the
application of incentive and meritorious
gain time, and that defendants must serve
no less than eighty-five percent of their
term of imprisonment). This situation
does not in any way provide Appellant
with a meaningful or realistic opportunity
to obtain release, as required by Graham.
While the trial court was correct that the
Eighth Amendment does not foreclose the
possibility that juveniles who commit nonhomicide crimes will remain in prison for
life, Graham also cautioned that states are
foreclosed from making the judgment at
the outset that those offenders will never
be fit to reenter society. By sentencing
Appellant to eighty years in prison, the
trial court impermissibly made that judgment.
Fla.
FLOYD v. STATE
In reaching our decision, we are mindful

of those cases, both in Florida and in other
states, where the courts have deemed
lengthy term-of-years sentences constitutional. See, e.g., Henry v. State, 82 So.3d
1084 (Fla. 5th DCA 2012) (holding that a
ninety-year sentence for a juvenile defendant who committed nonhomicide offenses
was constitutional); State v. Kasic, 228
Ariz. 228, 265 P.3d 410, 415 (2011) (holding
that a combined 139.75year sentence for
a juvenile defendant who committed nonhomicide offenses was constitutional);
People v. Caballero, 119 Cal.Rptr.3d 920,
926 (Cal.App.Ct.2011) (holding that a 110
year sentence for a juvenile defendant who
committed nonhomicide offenses was constitutional).
We disagree with those
courts, however, that a lengthy term-ofyears sentence cannot constitute the functional equivalent of a life sentence without
parole. As the California appellate court
reasoned in People v. Mendez, 188 Cal.
App.4th 47, 114 Cal.Rptr.3d 870, 88283
(2010), while Grahams holding was expressly limited to juveniles sentenced to
life without the possibility of parole, courts
should be guided by the principles set
forth in Graham when evaluating a
lengthy term-of-years sentence for a juvenile who was convicted of a nonhomicide
offense. In holding that the juvenile defendants eighty-four-year sentence was
unconstitutional, the court found that common sense dictated that a juvenile who is
sentenced at the age of eighteen and who
is not eligible for parole until after he is
expected to die does not have a meaningful or, as the Supreme Court also described, realistic opportunity of release.
114 Cal.Rptr.3d at 883; see also United
States v. Mathurin, No. 0921075Cr, 2011
WL 2580775 (S.D.Fla. June 29, 2011)
(holding that a 307year sentence for a
juvenile who committed nonhomicide offenses was unconstitutional); People v.
J.I.A., 127 Cal.Rptr.3d 141, 149 (Cal.App.
47
Ct.2011) (holding that the juveniles sentence, which had a minimum period of
actual confinement of 56.5 years, was unconstitutional because the defendant would
not be eligible for parole until about the
time he was expected to die); People v. De
Jesus Nunez, 125 Cal.Rptr.3d 616, 617
(Cal.App.Ct.2011) (holding that the juveniles sentence, which precluded the possibility of parole for 175 years, was unconstitutional).
In this case, common sense dictates that
Appellants eighty-year sentence, which,
according to the statistics cited by Appellant, is longer than his life expectancy, is
the functional equivalent of a life without
parole sentence and will not provide him
with a meaningful or realistic opportunity
to obtain release. We, therefore, reverse
Appellants forty-year consecutive sentences and remand for resentencing. In
doing so, we encourage the Legislature to
follow the Supreme Courts guidance in
Graham and to explore the means and
mechanisms for compliance of its opinion.
Until either the Legislature or a higher
court addresses the issue, the uncertainty
that has arisen in this area of the law since
Graham was issued will undoubtedly continue.
REVERSED and REMANDED for resentencing.
DAVIS, VAN NORTWICK, and
PADOVANO, JJ., concur.
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
2011

Terrance Jamar GRAHAM, Petitioner,
v.
FLORIDA.
No. 087412.
Decided May 17, 2010.
As Modified July 6, 2010.
Background: The State of Florida filed a
probation violation report against defendant, who was on probation for crimes he
had committed while a juvenile. The Circuit Court, Duval County, Lance M. Day,
J., determined that a probation violation
occurred and sentenced defendant to life
imprisonment without the possibility of parole. Defendant appealed. The District
Court of Appeal of Florida, First District,
Wolf, J., 982 So.2d 43, affirmed, and the
Supreme Court of Florida, 2008 WL
3896182, denied review. Certiorari was
granted.
Holdings: The Supreme Court, Justice
Kennedy, held that:
(1) Eighth Amendment prohibits imposition of life without parole sentence on
juvenile offender who did not commit
homicide, and
To determine whether a punishment

is cruel and unusual, in violation of the
Eighth Amendment, courts must look beyond historical conceptions to the evolving
standards of decency that mark the progress of a maturing society. U.S.C.A.
Const.Amend. 8.
The Eighth Amendments standard of
extreme cruelty is not merely descriptive,
but necessarily embodies a moral judgment; the standard itself remains the
same, but its applicability must change as
the basic mores of society change.
The Cruel and Unusual Punishments
Clause prohibits the imposition of inherently barbaric punishments under all circumstances. U.S.C.A. Const.Amend. 8.
Punishments of torture are forbidden
under the Cruel and Unusual Punishments
Clause. U.S.C.A. Const.Amend. 8.
(2) State must give juvenile nonhomicide

offender sentenced to life without parole meaningful opportunity to obtain
release.
Under the Eighth Amendment, the

State must respect the human attributes
even of those who have committed serious
crimes. U.S.C.A. Const.Amend. 8.
Justice Stevens filed a concurring opinion

in which Justice Ginsburg and Justice Sotomayor joined.
The concept of proportionality is central to the Eighth Amendment. U.S.C.A.

Const.Amend. 8.
Chief Justice Roberts filed an opinion concurring in the judgment.
Justice Thomas filed a dissenting opinion

in which Justice Scalia joined, and which
Justice Alito joined in part.
Justice Alito filed a dissenting opinion.
Embodied in the Constitutions ban on

cruel and unusual punishments is the precept of justice that punishment for crime
should be graduated and proportioned to
the offense. U.S.C.A. Const.Amend. 8.
2012

On an Eighth Amendment challenge
to the length of a term-of-years sentence,
the Court considers all of the circumstances of the case to determine whether
the sentence is unconstitutionally excessive. U.S.C.A. Const.Amend. 8.
Under categorical approach for defining Eighth Amendment standards, the Supreme Court first considers objective indicia of societys standards, as expressed in
legislative enactments and state practice to
determine whether there is a national consensus against the sentencing practice at
issue, and then, guided by the standards
elaborated by controlling precedents and
by the Courts own understanding and interpretation of the Eighth Amendments
text, history, meaning, and purpose, the
Court must determine in the exercise of its
own independent judgment whether the
punishment in question violates the Constitution. U.S.C.A. Const.Amend. 8.
Eighth Amendment categorically prohibits the imposition of a life without parole sentence on a juvenile offender who
did not commit homicide; although 37
States and District of Columbia permitted
sentences of life without parole for a juvenile nonhomicide offender in some circumstances, and federal law allowed for
possibility of life without parole for offenders as young as 13, national consensus existed against imposing such sentences, given that only 12 jurisdictions
nationwide imposed life without parole
sentences on juvenile nonhomicide offenders, and most of those imposed the sentence quite rarely, life without parole was
the second most severe penalty permitted, juvenile nonhomicide offenders had
limited culpability compared to adult offenders, and no legitimate penological
goal, including retribution, deterrence, incapacitation, and rehabilitation, provided

an adequate justification for such a sentence. U.S.C.A. Const.Amend. 8.
The clearest and most reliable objective evidence of contemporary values, for
purposes of Eighth Amendment challenge,
is the legislation enacted by the countrys
legislatures, but there are measures of
consensus other than legislation, and actual sentencing practices are an important
part of the Courts inquiry into consensus.
Community consensus, while entitled
to great weight, is not itself determinative
of whether a punishment is cruel and unusual, in violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8.
The task of interpreting the Eighth
Amendment remains the Courts responsibility, and the judicial exercise of independent judgment requires consideration of
the culpability of the offenders at issue in
light of their crimes and characteristics,
along with the severity of the punishment
in question, as well as consideration of
whether the challenged sentencing practice serves legitimate penological goals.
14. Infants O223.1
Because juveniles have lessened culpability they are less deserving of the most
severe punishments.
15. Infants O223.1
For purposes of determining punishment, a juvenile is not absolved of responsibility for his actions, but his transgression is not as morally reprehensible as that
of an adult.
2013
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)

The penological justifications for a
sentencing practice are relevant to the
Courts analysis on an Eighth Amendment
challenge to the practice. U.S.C.A. Const.
Amend. 8.
Criminal punishment can have different goals, and choosing among them is
within a legislatures discretion.
A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense, in violation of
the Eighth Amendment. U.S.C.A. Const.
Amend. 8.
Retribution is a legitimate reason to
punish, but the heart of the retribution
rationale is that a criminal sentence must
be directly related to the personal culpability of the criminal offender.
23. Sentencing and Punishment O1480,

1605
An offenders age is relevant to the
Eighth Amendment, and criminal procedure laws that fail to take defendants
youthfulness into account at all would be
flawed. U.S.C.A. Const.Amend. 8.
State criminal procedure laws requiring consideration of offenders age in connection with prosecutorial charging decisions did not mitigate need for categorical
rule prohibiting the imposition of a life
without parole sentence on a juvenile offender who did not commit homicide, as
sentencing of a juvenile nonhomicide offender based on a subjective judgment
that the defendants crimes demonstrate
an irretrievably depraved character would
be inconsistent with the Eighth Amendment. U.S.C.A. Const.Amend. 8.

Even if a punishment has some connection to a valid penological goal, to satisfy the Eighth Amendment it must be
shown that the punishment is not grossly
disproportionate in light of the justification
offered. U.S.C.A. Const.Amend. 8.
The judgments of other nations and

the international community are not dispositive as to the meaning of the Eighth
Amendment, but the climate of international opinion concerning the acceptability
of a particular punishment is also not irrelevant. U.S.C.A. Const.Amend. 8.

It is for legislatures to determine
what rehabilitative techniques are appropriate and effective for offenders.
West Codenotes

While the Eighth Amendment does
not require a State that has imposed a life
without parole sentence on a juvenile nonhomicide offender to release that offender
during his natural life, it does require the
State to give the offender some meaningful
opportunity to obtain release based on
demonstrated maturity and rehabilitation.
Unconstitutional as Applied
Wests F.S.A. 810.02, 921.002(1)(e),
985.557
Validity Called into Doubt
Ala.Code 1975, 12-15-203, 13A-3-3,
13A-5-9(c), 13A-6-61, 13A-7-5
A.R.S. 13-501, 13-1423
Wests A.C.A. 9-27-318(b), 5-4501(c)
Wests
Ann.Cal.Penal
667.7(a)(2), 1170.17
Code
2014
10 Del.C. 1010; 11 Del.C. 773(c)

D.C. Official Code 16-2307, 22-3020
Wests Or.Rev. Stat. Ann. 137.707,

137.719(1)
Wests Ga.Code Ann. 15-11-30.2,

16-6-1(b)
42 Pa.C.S.A 6355(a); 18 Pa.C.S.A

3121(e)(2); 61 Pa.C.S.A 6137(a)
Wests Idaho Code Annotated 186503, 19-2513, 20-509
R.I. Gen.Laws 1956, 14-1-7, 14-17.1, 11-47-3.2
S.H.A. 705 ILCS 405/5-805, 405/5-130;

S.H.A. 720 ILCS 5/12-13(b)(3); S.H.A. 730
ILCS 5/3-3-3(d)
S.C. Code 1976, 63-19-1210, 16-11311(B)
Wests A.I.C. 31-30-3-6(1), 35-50-28.5(a)
SDCL 26-11-3.1, 26-11-4, 22-3-1,

22-6-1(2),(3), 24-15-4, 22-19-1, 22-22-1
37-1-134,
40-35-
LSA-Ch.C. art. 305, 857(A),(B); LSAR.S. 14:44
Wests U.C.A. 78A-6-602,

703, 76-5-302
78A-6-
Wests Ann.Md.Code, Courts and Judicial Proceedings, 3-8A-03(d)(1), 3-8A06(a)(2); Wests Ann.Md.Code, Criminal
Law, 3-303(d)(2),(3)
Wests V.C.A. 16.1-269.1, 18.2-61,

53.1-151(B1)
Iowa Code 232.45(6), 709.2, 902.1
M.C.L.A.
769.1
712A.4,
750.520b(2)(c),
Minn.Stat. 260B.125(1), 609.3455(2)

Wests A.M.C. 43-21-157, 97-3-53,
99-19-81, 99-19-83
V.A.M.S. 211.071, 558.018
Wests Neb.Rev.St. 28-105, 28416(8)(a), 29-2204(1),(3), 43-247, 43-276
Wests
120(g)
T.C.A.
Wests RCWA 13.40.110, 9A.04.050,

9.94A.030(34), 9.94A.570
Wests Ann.W.Va.Code, 49-5-10, 61-214a(a)
W.S.A. 938.18, 938.183, 939.62(2m)(c)
Wyo. Stat. Ann. 6-2-306(d),(e), 146-203
18 U.S.C.A. 2241, 5032
Wests NRSA 62B.330, 200.366

N.H. RSA 169-B:24, 628:1, 632-A:2,
651:6
Syllabus *
10A Okl.St.Ann. 2-5-204, 2-5-205,

2-5-206; 21 Okl.St.Ann. 1115
Petitioner Graham was 16 when he

committed armed burglary and another
crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt.
Subsequently, the trial court found that
Graham had violated the terms of his probation by committing additional crimes.
The trial court adjudicated Graham guilty
of the earlier charges, revoked his probation, and sentenced him to life in prison for
the burglary. Because Florida has abol-

282, 50 L.Ed. 499.
McKinneys
60.06, 490.55
Penal
Law
30.00,
Wests N.C.G.S.A. 7B-2200, 15A1340.16B(a)

NDCC 12.1-04-01, 12.1-20-03, 12.1-3201
Ohio
R.C.
2971.03(A)(2)
2152.10,
2907.02,
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
ished its parole system, the life sentence

left Graham no possibility of release except
executive clemency. He challenged his
sentence under the Eighth Amendments
Cruel and Unusual Punishments Clause,
but the State First District Court of Appeal affirmed.
Held: The Clause does not permit a
juvenile offender to be sentenced to life in
prison without parole for a nonhomicide
crime. Pp. 2021 2034.
(a) Embodied in the cruel and unusual punishments ban is the precept TTT
that punishment for crime should be graduated and proportioned to [the] offense.
Weems v. United States, 217 U.S. 349, 367,
30 S.Ct. 544, 54 L.Ed. 793. The Courts
cases implementing the proportionality
standard fall within two general classifications. In cases of the first type, the Court
has considered all the circumstances to
determine whether the length of a term-ofyears sentence is unconstitutionally excessive for a particular defendants crime.
The second classification comprises cases
in which the Court has applied certain
categorical rules against the death penalty.
In a subset of such cases considering the
nature of the offense, the Court has concluded that capital punishment is impermissible for nonhomicide crimes against
individuals. E.g., Kennedy v. Louisiana,
554 U.S. , , 128 S.Ct. 2641, ,
171 L.Ed.2d 525. In a second subset, cases
turning on the offenders characteristics,
the Court has prohibited death for defendants who committed their crimes before
age 18, Roper v. Simmons, 543 U.S. 551,
125 S.Ct. 1183, 161 L.Ed.2d 1, or whose
intellectual functioning is in a low range,
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.
2242, 153 L.Ed.2d 335. In cases involving
categorical rules, the Court first considers
objective indicia of societys standards, as
is a national consensus against the sen-
2015
tencing practice at issue. Roper, supra, at

563, 125 S.Ct. 1183. Next, looking to the
standards elaborated by controlling precedents and by the Courts own understanding and interpretation of the Eighth
Amendments text, history, meaning, and
purpose, Kennedy, supra, at , 128
S.Ct. at 2642, the Court determines in the
exercise of its own independent judgment
whether the punishment in question violates the Constitution, Roper, supra, at
564, 125 S.Ct. 1183. Because this case
implicates a particular type of sentence as
it applies to an entire class of offenders
who have committed a range of crimes, the
appropriate analysis is the categorical approach used in Atkins, Roper, and Kennedy. Pp. 2021 2023.
(b) Application of the foregoing approach convinces the Court that the sentencing practice at issue is unconstitutional. Pp. 2023 2034.
(1) Six jurisdictions do not allow life
without parole sentences for any juvenile
offenders. Seven jurisdictions permit life
without parole for juvenile offenders, but
only for homicide crimes. Thirty-seven
States, the District of Columbia, and the
Federal Government permit sentences of
life without parole for a juvenile nonhomicide offender in some circumstances. The
State relies on these data to argue that no
national consensus against the sentencing
practice in question exists. An examination of actual sentencing practices in those
jurisdictions that permit life without parole
for juvenile nonhomicide offenders, however, discloses a consensus against the sentence. Nationwide, there are only 123 juvenile offenders serving life without parole
sentences for nonhomicide crimes. Because 77 of those offenders are serving
sentences imposed in Florida and the other 46 are imprisoned in just 10 States, it
appears that only 11 jurisdictions nationwide in fact impose life without parole
2016
sentences on juvenile nonhomicide offenders, while 26 States, the District of Columbia, and the Federal Government do not
impose them despite apparent statutory
authorization. Given that the statistics reflect nearly all juvenile nonhomicide offenders who have received a life without
parole sentence stretching back many
years, moreover, it is clear how rare these
sentences are, even within the States that
do sometimes impose them. While more
common in terms of absolute numbers
than the sentencing practices in, e.g., Atkins and Enmund v. Florida, 458 U.S.
782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, the
type of sentence at issue is actually as rare
as those other sentencing practices when
viewed in proportion to the opportunities
for its imposition. The fact that many
jurisdictions do not expressly prohibit the
sentencing practice at issue is not dispositive because it does not necessarily follow
that the legislatures in those jurisdictions
have deliberately concluded that such sentences would be appropriate. See Thompson v. Oklahoma, 487 U.S. 815, 826, n. 24,
850, 108 S.Ct. 2687, 101 L.Ed.2d 702. Pp.
2023 2026.
(2) The inadequacy of penological theory to justify life without parole sentences
for juvenile nonhomicide offenders, the
limited culpability of such offenders, and
the severity of these sentences all lead the
Court to conclude that the sentencing
practice at issue is cruel and unusual. No
recent data provide reason to reconsider
Roper s holding that because juveniles
have lessened culpability they are less deserving of the most serious forms of punishment. 543 U.S., at 551, 125 S.Ct. 1183.
Moreover, defendants who do not kill, intend to kill, or foresee that life will be
taken are categorically less deserving of
such punishments than are murderers.
E.g., Kennedy, supra. Serious nonhomicide crimes may be devastating in their
harm TTT but in terms of moral depravity
and of the injury to the person and to the

public, TTT they cannot be compared to
murder in their severity and irrevocability. Id., at , 128 S.Ct. at 2660. Thus,
when compared to an adult murderer, a
juvenile offender who did not kill or intend
to kill has a twice diminished moral culpability. Age and the nature of the crime
each bear on the analysis. As for the
punishment, life without parole is the second most severe penalty permitted by
law, Harmelin v. Michigan, 501 U.S. 957,
1001, 111 S.Ct. 2680, 115 L.Ed.2d 836, and
is especially harsh for a juvenile offender,
who will on average serve more years and
a greater percentage of his life in prison
than an adult offender, see, e.g., Roper,
supra, at 572, 125 S.Ct. 1183. And none of
the legitimate goals of penal sanctions
retribution, deterrence, incapacitation, and
rehabilitation, see Ewing v. California, 538
U.S. 11, 25, 123 S.Ct. 1179, 155 L.Ed.2d
108is adequate to justify life without parole for juvenile nonhomicide offenders,
see, e.g., Roper, 543 U.S., at 571, 573, 125
S.Ct. 1183. Because age 18 is the point
where society draws the line for many
purposes between childhood and adulthood, it is the age below which a defendant may not be sentenced to life without
parole for a nonhomicide crime. Id., at
574, 125 S.Ct. 1183. A State is not required to guarantee eventual freedom to
such an offender, but must impose a sentence that provides some meaningful opportunity for release based on demonstrated maturity and rehabilitation. It is for
the State, in the first instance, to explore
the means and mechanisms for compliance.
Pp. 2026 2030.
(3) A categorical rule is necessary,
given the inadequacy of two alternative
approaches to address the relevant constitutional concerns. First, although Florida
and other States have made substantial
efforts to enact comprehensive rules gov-
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
erning the treatment of youthful offenders,

such laws allow the imposition of the type
of sentence at issue based only on a discretionary, subjective judgment by a judge or
jury that the juvenile offender is irredeemably depraved, and are therefore insufficient to prevent the possibility that the
offender will receive such a sentence despite a lack of moral culpability. Second, a
case-by-case approach requiring that the
particular offenders age be weighed
against the seriousness of the crime as
part of a gross disproportionality inquiry
would not allow courts to distinguish with
sufficient accuracy the few juvenile offenders having sufficient psychological maturity and depravity to merit a life without
parole sentence from the many that have
the capacity for change. Cf. Roper, supra,
at 572, 125 S.Ct. 1183. Nor does such an
approach take account of special difficulties encountered by counsel in juvenile
representation, given juveniles impulsiveness, difficulty thinking in terms of longterm benefits, and reluctance to trust
adults. A categorical rule avoids the risk
that, as a result of these difficulties, a
court or jury will erroneously conclude
that a particular juvenile is sufficiently
culpable to deserve life without parole for
a nonhomicide. It also gives the juvenile
offender a chance to demonstrate maturity
and reform. Pp. 2030 2033.
(4) Additional support for the Courts
conclusion lies in the fact that the sentencing practice at issue has been rejected the
world over: The United States is the only
Nation that imposes this type of sentence.
While the judgments of other nations and
the international community are not dispositive as to the meaning of the Eighth
Amendment, the Court has looked abroad
to support its independent conclusion that
a particular punishment is cruel and unusual. See, e.g., Roper, supra, at 572, 125
S.Ct. 1183. Pp. 2033 2034.
982 So.2d 43, reversed and remanded.
2017
KENNEDY, J., delivered the opinion

of the Court, in which STEVENS,
GINSBURG, BREYER, and
SOTOMAYOR, JJ., joined. STEVENS,
J., filed a concurring opinion, in which
GINSBURG and SOTOMAYOR, JJ.,
joined. ROBERTS, C.J., filed an opinion
concurring in the judgment. THOMAS,
J., filed a dissenting opinion, in which
SCALIA, J., joined, and in which ALITO,
J., joined as to Parts I and III. ALITO, J.,
filed a dissenting opinion.
Bryan S. Gowdy, appointed by this

Court, Jacksonville, FL, for petitioner.
Scott D. Makar, Solicitor General, Tallahassee, FL, for respondent.
Drew S. Days, III, Brian R. Matsui,
Seth M. Galanter, Morrison & Foerster
LLP, Washington, DC, George C. Harris,
Morrison & Foerster LLP, San Francisco,
CA, Bryan S. Gowdy, Counsel of Record,
John S. Mills, Rebecca Bowen Creed, Jessie L. Harrell, Mills Creed & Gowdy, P.A.,
Jacksonville, FL, for petitioner.
Bill McCollum, Attorney General of
Florida, Scott D. Makar, Solicitor General,
Counsel of Record, Louis F. Hubener,
Chief Deputy Solicitor General, Timothy
D. Osterhaus, Craig D. Feiser, Courtney
Brewer, Ronald A. Lathan, Deputy Solicitors General, Tallahassee, FL, for respondent.
2009 WL 2159655 (Pet.Brief)
2009 WL 2954163 (Resp.Brief)
Justice KENNEDY delivered the
opinion of the Court.
The issue before the Court is whether
the Constitution permits a juvenile offender to be sentenced to life in prison without
2018
parole for a nonhomicide crime. The sentence was imposed by the State of Florida.
Petitioner challenges the sentence under
the Eighth Amendments Cruel and Unusual Punishments Clause, made applicable to the States by the Due Process
Clause of the Fourteenth Amendment.
Robinson v. California, 370 U.S. 660, 82
S.Ct. 1417, 8 L.Ed.2d 758 (1962).
I
Petitioner is Terrance Jamar Graham.
He was born on January 6, 1987. Grahams parents were addicted to crack cocaine, and their drug use persisted in his
early years. Graham was diagnosed with
attention deficit hyperactivity disorder in
elementary school. He began drinking alcohol and using tobacco at age 9 and
smoked marijuana at age 13.
In July 2003, when Graham was age 16,
he and three other school-age youths attempted to rob a barbeque restaurant in
Jacksonville, Florida. One youth, who
worked at the restaurant, left the back
door unlocked just before closing time.
Graham and another youth, wearing
masks, entered through the unlocked door.
Grahams masked accomplice twice struck
the restaurant manager in the back of the
head with a metal bar. When the manager started yelling at the assailant and Graham, the two youths ran out and escaped
in a car driven by the third accomplice.
The restaurant manager required stitches
for his head injury. No money was taken.
Graham was arrested for the robbery
attempt. Under Florida law, it is within a
prosecutors discretion whether to charge
16 and 17yearolds as adults or juveniles
for most felony crimes.
Fla. Stat.
985.227(1)(b) (2003) (subsequently renumbered at 985.557(1)(b) (2007)). Grahams prosecutor elected to charge Graham as an adult. The charges against
Graham were armed burglary with assault
or battery, a first-degree felony carrying a

maximum penalty of life imprisonment
without
the
possibility
of
parole,
810.02(1)(b), (2)(a) (2003); and attempted armed-robbery, a second-degree felony
carrying a maximum penalty of 15 years
imprisonment, 812.13(2)(b), 777.04(1),
(4)(a), 775.082(3)(c).
On December 18, 2003, Graham pleaded
guilty to both charges under a plea agreement. Graham wrote a letter to the trial
court. After reciting this is my first and
last time getting in trouble, he continued
Ive decided to turn my life around.
App. 379380. Graham said I made a
promise to God and myself that if I get a
second chance, Im going to do whatever it
takes to get to the [National Football
League]. Id., at 380.
The trial court accepted the plea agreement. The court withheld adjudication of
guilt as to both charges and sentenced
Graham to concurrent 3year terms of
probation. Graham was required to spend
the first 12 months of his probation in the
county jail, but he received credit for the
time he had served awaiting trial, and was
released on June 25, 2004.
Less than 6 months later, on the night
of December 2, 2004, Graham again was
arrested. The States case was as follows:
Earlier that evening, Graham participated
in a home invasion robbery. His two accomplices were Meigo Bailey and Kirkland
Lawrence, both 20yearold men. According to the State, at 7 p.m. that night,
Graham, Bailey, and Lawrence knocked on
the door of the home where Carlos Rodriguez lived. Graham, followed by Bailey
and Lawrence, forcibly entered the home
and held a pistol to Rodriguezs chest.
For the next 30 minutes, the three held
Rodriguez and another man, a friend of
Rodriguez, at gunpoint while they ransacked the home searching for money.
Before leaving, Graham and his accom-
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
plices barricaded Rodriguez and his friend

inside a closet.
The State further alleged that Graham,
Bailey, and Lawrence, later the same evening, attempted a second robbery, during
which Bailey was shot. Graham, who had
borrowed his fathers car, drove Bailey and
Lawrence to the hospital and left them
there. As Graham drove away, a police
sergeant signaled him to stop. Graham
continued at a high speed but crashed into
a telephone pole. He tried to flee on foot
but was apprehended. Three handguns
were found in his car.
When detectives interviewed Graham,
he denied involvement in the crimes. He
said he encountered Bailey and Lawrence
only after Bailey had been shot. One of
the detectives told Graham that the victims of the home invasion had identified
him. He asked Graham, Aside from the
two robberies tonight how many more
were you involved in? Graham responded, Two to three before tonight. Id., at
160. The night that Graham allegedly
committed the robbery, he was 34 days
short of his 18th birthday.
On December 13, 2004, Grahams probation officer filed with the trial court an
affidavit asserting that Graham had violated the conditions of his probation by possessing a firearm, committing crimes, and
associating with persons engaged in criminal activity. The trial court held hearings
on Grahams violations about a year later,
in December 2005 and January 2006. The
judge who presided was not the same
judge who had accepted Grahams guilty
plea to the earlier offenses.
Graham maintained that he had no involvement in the home invasion robbery;
but, even after the court underscored that
the admission could expose him to a life
sentence on the earlier charges, he admitted violating probation conditions by fleeing. The State presented evidence related
2019
to the home invasion, including testimony

from the victims. The trial court noted
that Graham, in admitting his attempt to
avoid arrest, had acknowledged violating
his probation. The court further found
that Graham had violated his probation by
committing a home invasion robbery, by
possessing a firearm, and by associating
with persons engaged in criminal activity.
The trial court held a sentencing hearing. Under Florida law the minimum sentence Graham could receive absent a
downward departure by the judge was 5
years imprisonment. The maximum was
life imprisonment. Grahams attorney requested the minimum nondeparture sentence of 5 years. A presentence report
prepared by the Florida Department of
Corrections recommended that Graham receive an even lower sentenceat most 4
years imprisonment. The State recommended that Graham receive 30 years on
the armed burglary count and 15 years on
the attempted armed robbery count.
After hearing Grahams testimony, the
trial court explained the sentence it was
about to pronounce:
Mr. Graham, as I look back on your
case, yours is really candidly a sad situation. You had, as far as I can tell, you
have quite a family structure. You had
a lot of people who wanted to try and
help you get your life turned around
including the court system, and you had
a judge who took the step to try and
give you direction through his probation
order to give you a chance to get back
onto track. And at the time you seemed
through your letters that that is exactly
what you wanted to do. And I dont
know why it is that you threw your life
away. I dont know why.
But you did, and that is what is so
sad about this today is that you have
actually been given a chance to get
2020
through this, the original charge, which

were very serious charges to begin with
TTT. The attempted robbery with a
weapon was a very serious charge.
.
.
.
.
.
[I]n a very short period of time you
were back before the Court on a violation of this probation, and then here you
are two years later standing before me,
literally thefacing a life sentence as
toup to life as to count 1 and up to 15
years as to count 2.
And I dont understand why you
would be given such a great opportunity
to do something with your life and why
you would throw it away. The only
thing that I can rationalize is that you
decided that this is how you were going
to lead your life and that there is nothing that we can do for you. And as the
state pointed out, that this is an escalating pattern of criminal conduct on your
part and that we cant help you any
further. We cant do anything to deter
you. This is the way you are going to
lead your life, and I dont know why you
are going to. Youve made that decision. I have no idea. But, evidently,
that is what you decided to do.
So then it becomes a focus, if I cant
do anything to help you, if I cant do
anything to get you back on the right
path, then I have to start focusing on
the community and trying to protect the
community from your actions. And, unfortunately, that is where we are today
is I dont see where I can do anything to
help you any further. Youve evidently
decided this is the direction youre going
to take in life, and its unfortunate that
you made that choice.
I have reviewed the statute. I dont
see where any further juvenile sanctions
would be appropriate. I dont see where
any youthful offender sanctions would
be appropriate. Given your escalating
pattern of criminal conduct, it is apparent to the Court that you have decided
that this is the way you are going to live
your life and that the only thing I can do
now is to try and protect the community
from your actions. Id., at 392394.
The trial court found Graham guilty of
the earlier armed burglary and attempted
armed robbery charges. It sentenced him
to the maximum sentence authorized by
law on each charge: life imprisonment for
the armed burglary and 15 years for the
attempted armed robbery. Because Florida has abolished its parole system, see Fla.
Stat. 921.002(1)(e) (2003), a life sentence
gives a defendant no possibility of release
unless he is granted executive clemency.
Graham filed a motion in the trial court
challenging his sentence under the Eighth
Amendment. The motion was deemed denied after the trial court failed to rule on it
within 60 days. The First District Court
of Appeal of Florida affirmed, concluding
that Grahams sentence was not grossly
disproportionate to his crimes. 982 So.2d
43 (2008). The court took note of the
seriousness of Grahams offenses and their
violent nature, as well as the fact that they
were not committed by a pre-teen, but a
seventeen-year-old who was ultimately
sentenced at the age of nineteen. Id., at
52. The court concluded further that Graham was incapable of rehabilitation. Although Graham was given an unheard of
probationary sentence for a life felony, TTT
wrote a letter expressing his remorse and
promising to refrain from the commission
of further crime, and TTT had a strong
family structure to support him, the court
noted, he rejected his second chance and
chose to continue committing crimes at an
escalating pace. Ibid. The Florida Supreme Court denied review. 990 So.2d
1058, 2008 WL 3896182 (2008) (table).
We granted certiorari. 556 U.S. ,
129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009).
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
II
[1, 2] The Eighth Amendment states:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted. To determine whether a punishment is cruel and
unusual, courts must look beyond historical
conceptions to the evolving standards of
decency that mark the progress of a maturing society. Estelle v. Gamble, 429
U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976) (quoting Trop v. Dulles, 356 U.S. 86,
101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)
(plurality opinion)). This is because [t]he
standard of extreme cruelty is not merely
descriptive, but necessarily embodies a
moral judgment. The standard itself remains the same, but its applicability must
change as the basic mores of society
change. Kennedy v. Louisiana, 554 U.S.
, , 128 S.Ct. 2641, 2649, 171
L.Ed.2d 525 (2008) (quoting Furman v.
Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726,
33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)).
[35] The Cruel and Unusual Punishments Clause prohibits the imposition of
inherently barbaric punishments under all
circumstances. See, e.g., Hope v. Pelzer,
536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d
666 (2002). [P]unishments of torture,
for example, are forbidden. Wilkerson
v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345
(1879). These cases underscore the essential principle that, under the Eighth
Amendment, the State must respect the
human attributes even of those who have
committed serious crimes.
[6, 7] For the most part, however, the
Courts precedents consider punishments
challenged not as inherently barbaric but
as disproportionate to the crime. The concept of proportionality is central to the
Eighth Amendment. Embodied in the
Constitutions ban on cruel and unusual
punishments is the precept of justice that
2021
punishment for crime should be graduated

and proportioned to [the] offense.
Weems v. United States, 217 U.S. 349, 367,
30 S.Ct. 544, 54 L.Ed. 793 (1910).
The Courts cases addressing the proportionality of sentences fall within two
general classifications. The first involves
challenges to the length of term-of-years
sentences given all the circumstances in a
particular case. The second comprises
cases in which the Court implements the
proportionality standard by certain categorical restrictions on the death penalty.
[8] In the first classification the Court
considers all of the circumstances of the
case to determine whether the sentence is
unconstitutionally excessive. Under this
approach, the Court has held unconstitutional a life without parole sentence for the
defendants seventh nonviolent felony, the
crime of passing a worthless check. Solem
v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983). In other cases, however, it has been difficult for the challenger to establish a lack of proportionality. A
leading case is Harmelin v. Michigan, 501
U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836
(1991), in which the offender was sentenced under state law to life without parole for possessing a large quantity of
cocaine. A closely divided Court upheld
the sentence. The controlling opinion concluded that the Eighth Amendment contains a narrow proportionality principle,
that does not require strict proportionality between crime and sentence but rather
forbids only extreme sentences that are
grossly disproportionate to the crime.
Id., at 997, 10001001, 111 S.Ct. 2680
concurring in judgment). Again closely
divided, the Court rejected a challenge to a
sentence of 25 years to life for the theft of
a few golf clubs under Californias socalled three-strikes recidivist sentencing
2022
scheme. Ewing v. California, 538 U.S. 11,

123 S.Ct. 1179, 155 L.Ed.2d 108 (2003);
see also Lockyer v. Andrade, 538 U.S. 63,
123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
The Court has also upheld a sentence of
life with the possibility of parole for a
defendants third nonviolent felony, the
crime of obtaining money by false pretenses, Rummel v. Estelle, 445 U.S. 263,
100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and
a sentence of 40 years for possession of
marijuana with intent to distribute and
distribution of marijuana, Hutto v. Davis,
454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556
(1982) (per curiam).
The controlling opinion in Harmelin explained its approach for determining
whether a sentence for a term of years is
grossly disproportionate for a particular
defendants crime. A court must begin by
comparing the gravity of the offense and
the severity of the sentence. 501 U.S., at
1005, 111 S.Ct. 2680 (opinion of KENNEDY, J.). [I]n the rare case in which [this]
threshold comparison TTT leads to an inference of gross disproportionality the court
should then compare the defendants sentence with the sentences received by other
offenders in the same jurisdiction and with
the sentences imposed for the same crime
in other jurisdictions. Ibid. If this comparative analysis validate[s] an initial
judgment that [the] sentence is grossly
disproportionate, the sentence is cruel
and unusual. Ibid.
The second classification of cases has
used categorical rules to define Eighth
Amendment standards.
The previous
cases in this classification involved the
death penalty. The classification in turn
consists of two subsets, one considering
the nature of the offense, the other considering the characteristics of the offender.
With respect to the nature of the offense,
the Court has concluded that capital punishment is impermissible for nonhomicide
crimes against individuals. Kennedy, supra, at , 128 S.Ct., at 2660; see also
Enmund v. Florida, 458 U.S. 782, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker
v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53
L.Ed.2d 982 (1977). In cases turning on
the characteristics of the offender, the
Court has adopted categorical rules prohibiting the death penalty for defendants
who committed their crimes before the age
of 18, Roper v. Simmons, 543 U.S. 551, 125
S.Ct. 1183, 161 L.Ed.2d 1 (2005), or whose
intellectual functioning is in a low range,
2242, 153 L.Ed.2d 335 (2002). See also
Thompson v. Oklahoma, 487 U.S. 815, 108
S.Ct. 2687, 101 L.Ed.2d 702 (1988).
[9] In the cases adopting categorical
rules the Court has taken the following
approach. The Court first considers objective indicia of societys standards, as
is a national consensus against the sentencing practice at issue. Roper, supra, at
572, 125 S.Ct. 1183. Next, guided by the
standards elaborated by controlling precedents and by the Courts own understanding and interpretation of the Eighth
purpose, Kennedy, 554 U.S., at , 128
S.Ct., at 2650, the Court must determine in
the exercise of its own independent judgment whether the punishment in question
violates the Constitution. Roper, supra, at
572, 125 S.Ct. 1183.
The present case involves an issue the
Court has not considered previously: a
categorical challenge to a term-of-years
sentence. The approach in cases such as
Harmelin and Ewing is suited for considering a gross proportionality challenge to a
particular defendants sentence, but here a
sentencing practice itself is in question.
This case implicates a particular type of
sentence as it applies to an entire class of
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
offenders who have committed a range of

crimes. As a result, a threshold comparison between the severity of the penalty
and the gravity of the crime does not
advance the analysis. Here, in addressing
the question presented, the appropriate
analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.
III
A
[10, 11] The analysis begins with objective indicia of national consensus. [T]he
clearest and most reliable objective evidence of contemporary values is the legislation enacted by the countrys legislatures. Atkins, supra, at 312, 122 S.Ct.
2242 (quoting Penry v. Lynaugh, 492 U.S.
302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989)). Six jurisdictions do not allow life
without parole sentences for any juvenile
offenders. See Appendix, infra, Part III.
Seven jurisdictions permit life without parole for juvenile offenders, but only for
homicide crimes. Id., Part II. Thirty-seven States as well as the District of Columbia permit sentences of life without parole
for a juvenile nonhomicide offender in
some circumstances. Id., Part I. Federal
law also allows for the possibility of life
without parole for offenders as young as
13. See, e.g., 18 U.S.C. 2241 (2006 ed.
and Supp. II), 5032 (2006 ed.). Relying on
this metric, the State and its amici argue
that there is no national consensus against
the sentencing practice at issue.
This argument is incomplete and unavailing. There are measures of consensus other than legislation. Kennedy, supra, at , 128 S.Ct., at 2657. Actual
sentencing practices are an important part
of the Courts inquiry into consensus.
See Enmund, supra, at 794796, 102 S.Ct.
3368; Thompson, supra, at 831832, 108
S.Ct. 2687 (plurality opinion); Atkins, su-
2023
pra, at 316, 122 S.Ct. 2242; Roper, supra,

at 572, 125 S.Ct. 1183; Kennedy, supra,
at , 128 S.Ct., at 265758. Here, an
examination of actual sentencing practices
in jurisdictions where the sentence in
question is permitted by statute discloses
a consensus against its use. Although
these statutory schemes contain no explicit prohibition on sentences of life without
parole for juvenile nonhomicide offenders,
those sentences are most infrequent. According to a recent study, nationwide
there are only 109 juvenile offenders serving sentences of life without parole for
nonhomicide offenses. See P. Annino, D.
Rasmussen, & C. Rice, Juvenile Life without Parole for NonHomicide Offenses:
Florida Compared to Nation 2 (Sept. 14,
2009) (hereinafter Annino).
The State contends that this studys tally is inaccurate because it does not count
juvenile offenders who were convicted of
both a homicide and a nonhomicide offense, even when the offender received a
life without parole sentence for the nonhomicide. See Brief for Respondent 34; Tr.
of Oral Arg. in Sullivan v. Florida, O. T.
2009, No. 087621, pp. 2831. This distinction is unpersuasive. Juvenile offenders
who committed both homicide and nonhomicide crimes present a different situation
for a sentencing judge than juvenile offenders who committed no homicide. It is
difficult to say that a defendant who receives a life sentence on a nonhomicide
offense but who was at the same time
convicted of homicide is not in some sense
being punished in part for the homicide
when the judge makes the sentencing determination. The instant case concerns
only those juvenile offenders sentenced to
life without parole solely for a nonhomicide
offense.
Florida further criticizes this study because the authors were unable to obtain
complete information on some States and
2024
because the study was not peer reviewed.

See Brief for Respondent 40. The State
does not, however, provide any data of its
own. Although in the first instance it is
for the litigants to provide data to aid the
Court, we have been able to supplement
the studys findings. The studys authors
were not able to obtain a definitive tally
for Nevada, Utah, or Virginia. See Annino 1113. Our research shows that Nevada has five juvenile nonhomicide offenders
serving life without parole sentences, Utah
has none, and Virginia has eight. See
Letter from Alejandra Livingston, Offender Management Division, Nevada Dept. of
Corrections, to Supreme Court Library
(Mar. 26, 2010) (available in Clerk of
Courts case file); Letter from Steve
Gehrke, Utah Dept. of Corrections, to Supreme Court Library (Mar. 29, 2010)
(same); Letter from Dr. Tama S. Celi,
Virginia Dept. of Corrections, to Supreme
Court Library (Mar. 30, 2010) (same). Finally, since the study was completed, a
defendant in Oklahoma has apparently
been sentenced to life without parole for a
rape and stabbing he committed at the age
of 16. See Stogsdill, Delaware County
Teen Sentenced in Rape, Assault Case,
Tulsa World, May 4, 2010, p. A12.
siana, Mississippi, Nebraska, Nevada,

Oklahoma, South Carolina, and Virginia.
Id., at 14; supra, at 1213; Letter from
Thomas P. Hoey, Dept. of Corrections,
Government of the District of Columbia, to
Supreme Court Library (Mar. 31, 2010)
(available in Clerk of Courts case file);
Letter from Judith Simon Garrett, U.S.
Dept. of Justice, Federal Bureau of Prisons (BOP), to Supreme Court Library
(Apr. 9, 2010) (available in Clerk of Courts
case file). Thus, only 11 jurisdictions nationwide in fact impose life without parole
sentences on juvenile nonhomicide offendersand most of those do so quite rarelywhile 26 States, the District of Columbia, and the Federal Government do not
impose them despite apparent statutory
authorization.**
Thus, adding the individuals counted by

the study to those we have been able to
locate independently, there are 123 juvenile nonhomicide offenders serving life
without parole sentences. A significant
majority of those, 77 in total, are serving
sentences imposed in Florida. Annino 2.
The other 46 are imprisoned in just 10
StatesCalifornia, Delaware, Iowa, Loui-
The numbers cited above reflect all current convicts in a jurisdictions penal system, regardless of when they were convicted. It becomes all the more clear how
rare these sentences are, even within the
jurisdictions that do sometimes impose
them, when one considers that a juvenile
sentenced to life without parole is likely to
live in prison for decades. Thus, these
statistics likely reflect nearly all juvenile
nonhomicide offenders who have received
a life without parole sentence stretching
back many years. It is not certain that
this opinion has identified every juvenile
nonhomicide offender nationwide serving a
life without parole sentence, for the statistics are not precise. The available data,
nonetheless, are sufficient to demonstrate
how rarely these sentences are imposed
even if there are isolated cases that have
** When issued, the Courts opinion relied on a

report from the BOP stating that there are six
juvenile nonhomicide offenders serving life
without parole in the federal system. The
Acting Solicitor General subsequently informed the Court that further review revealed
that none of the six prisoners referred to in
the earlier BOP report is serving a life the
earlier BOP report is serving a life without
parole sentence solely for a juvenile without
parole sentence solely for a juvenile nonhomi-
cide crime completed before the age of 18.

Letter from Neal Kumar Katyal, Acting Solicitor General, to William K. Suter, Clerk of
Court (May 24, 2010) (available in Clerk of
Courts case file). The letter further stated
that the Government was not aware of any
other federal prisoners serving life without
parole sentences solely for juvenile nonhomicide crimes. Ibid. The opinion was amended
in light of this new information.
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
not been included in the presentations of

the parties or the analysis of the Court.
It must be acknowledged that in terms
of absolute numbers juvenile life without
parole sentences for nonhomicides are
more common than the sentencing practices at issue in some of this Courts other
Eighth Amendment cases. See, e.g., Enmund, 458 U.S., at 794, 102 S.Ct. 3368
(only six executions of nontriggerman felony murderers between 1954 and 1982) Atkins, 536 U.S., at 316, 122 S.Ct. 2242 (only
five executions of mentally retarded defendants in 13year period). This contrast
can be instructive, however, if attention is
first given to the base number of certain
types of offenses. For example, in the
year 2007 (the most recent year for which
statistics are available), a total of 13,480
persons, adult and juvenile, were arrested
for homicide crimes. That same year, 57,600 juveniles were arrested for aggravated
assault; 3,580 for forcible rape; 34,500 for
robbery; 81,900 for burglary; 195,700 for
drug offenses; and 7,200 for arson. See
Dept. of Justice, Office of Juvenile Justice
and Delinquency Prevention, Statistical
Briefing Book, online at http://ojjdp.ncjrs.
org/ojstatbb/ (as visited May 14, 2010, and
available in Clerk of Courts case file).
Although it is not certain how many of
these numerous juvenile offenders were
eligible for life without parole sentences,
the comparison suggests that in proportion
to the opportunities for its imposition, life
without parole sentences for juveniles convicted of nonhomicide crimes is as rare as
other sentencing practices found to be cruel and unusual.
The evidence of consensus is not undermined by the fact that many jurisdictions
do not prohibit life without parole for juvenile nonhomicide offenders. The Court
confronted a similar situation in Thompson, where a plurality concluded that the
death penalty for offenders younger than
16 was unconstitutional. A number of
States then allowed the juvenile death penalty if one considered the statutory
2025
scheme. As is the case here, those States

authorized the transfer of some juvenile
offenders to adult court; and at that point
there was no statutory differentiation between adults and juveniles with respect to
authorized penalties. The plurality concluded that the transfer laws show that
the States consider 15yearolds 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. 487
U.S., at 826, n. 24, 108 S.Ct. 2687. Justice
OConnor, concurring in the judgment,
took a similar view. Id., at 850, 108 S.Ct.
2687 (When a legislature provides for
some 15yearolds to be processed
through the adult criminal justice system,
and capital punishment is available for
adults in that jurisdiction, the death penalty becomes at least theoretically applicable
to such defendants TTT. [H]owever, it
does not necessarily follow that the legislatures in those jurisdictions have deliberately concluded that it would be appropriate).
The same reasoning obtains here.
Many States have chosen to move away
from juvenile court systems and to allow
juveniles to be transferred to, or
charged directly in, adult court under
certain circumstances. Once in adult
court, a juvenile offender may receive
the same sentence as would be given to
an adult offender, including a life without parole sentence. But the fact that
transfer and direct charging laws make
life without parole possible for some juvenile nonhomicide offenders does not
justify a judgment that many States intended to subject such offenders to life
without parole sentences.
For example, under Florida law a child
of any age can be prosecuted as an adult
for certain crimes and can be sentenced to
life without parole. The State acknowledged at oral argument that even a 5
yearold, theoretically, could receive such
2026
a sentence under the letter of the law.

See Tr. of Oral Arg. 3637. All would
concede this to be unrealistic, but the example underscores that the statutory eligibility of a juvenile offender for life without
parole does not indicate that the penalty
has been endorsed through deliberate, express, and full legislative consideration.
Similarly, the many States that allow life
without parole for juvenile nonhomicide offenders but do not impose the punishment
should not be treated as if they have expressed the view that the sentence is appropriate. The sentencing practice now
under consideration is exceedingly rare.
And it is fair to say that a national consensus has developed against it. Atkins,
supra, at 316, 122 S.Ct. 2242.
B
[12, 13] Community consensus, while
entitled to great weight, is not itself
determinative of whether a punishment is
cruel and unusual. Kennedy, 554 U.S., at
, 128 S.Ct., at 2658. In accordance
with the constitutional design, the task of
interpreting the Eighth Amendment remains our responsibility. Roper, 543
U.S., at 575, 125 S.Ct. 1183. The judicial
exercise of independent judgment requires
consideration of the culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of
the punishment in question. Id., at 568,
125 S.Ct. 1183; Kennedy, supra, at ,
128 S.Ct., at 255960; cf. Solem, 463 U.S.,
at 292, 103 S.Ct. 3001. In this inquiry the
Court also considers whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra,
at , 128 S.Ct., at 266165; Roper, supra, at 572, 125 S.Ct. 1183; Atkins, supra,
at 318320, 122 S.Ct. 2242.
[14, 15] Roper established that because
juveniles have lessened culpability they are
less deserving of the most severe punish-
ments. 543 U.S., at 569, 125 S.Ct. 1183.

As compared to adults, juveniles have a
lack of maturity and an underdeveloped
sense of responsibility ; they are more
vulnerable or susceptible to negative influences and outside pressures, including
peer pressure; and their characters are
not as well formed. Id., at 569570, 125
S.Ct. 1183. These salient characteristics
mean that [i]t is difficult even for expert
psychologists to differentiate between the
juvenile offender whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime
reflects irreparable corruption. Id., at
573, 125 S.Ct. 1183. Accordingly, juvenile
offenders cannot with reliability be classified among the worst offenders. Id., at
569, 125 S.Ct. 1183. A juvenile is not
absolved of responsibility for his actions,
but his transgression is not as morally
reprehensible as that of an adult.
Thompson, supra, at 835, 108 S.Ct. 2687
(plurality opinion).
No recent data provide reason to reconsider the Courts observations in Roper
about the nature of juveniles. As petitioners amici point out, developments in psychology and brain science continue to show
fundamental differences between juvenile
and adult minds. For example, parts of
the brain involved in behavior control continue to mature through late adolescence.
See Brief for American Medical Association et al. as Amici Curiae 1624; Brief
for American Psychological Association et
al. as Amici Curiae 2227. Juveniles are
more capable of change than are adults,
and their actions are less likely to be evidence of irretrievably depraved character than are the actions of adults. Roper,
543 U.S., at 570, 125 S.Ct. 1183. It remains true that [f]rom a moral standpoint
it would be misguided to equate the failings of a minor with those of an adult, for
a greater possibility exists that a minors
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
character deficiencies will be reformed.

Ibid. These matters relate to the status of
the offenders in question; and it is relevant to consider next the nature of the
offenses to which this harsh penalty might
apply.
The Court has recognized that defendants who do not kill, intend to kill, or
foresee that life will be taken are categorically less deserving of the most serious
forms of punishment than are murderers.
Kennedy, supra; Enmund, 458 U.S. 782,
102 S.Ct. 3368; Tison v. Arizona, 481 U.S.
137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987);
Coker, 433 U.S. 584, 97 S.Ct. 2861. There
is a line between homicide and other serious violent offenses against the individual.
Kennedy, 554 U.S., at , 128 S.Ct., at
265960.
Serious nonhomicide crimes
may be devastating in their harm TTT but
in terms of moral depravity and of the
injury to the person and to the public, TTT
they cannot be compared to murder in
their severity and irrevocability. Id., at
, 128 S.Ct., at 2660 (quoting Coker,
433 U.S., at 598, 97 S.Ct. 2861 (plurality
opinion)). This is because [l]ife is over
for the victim of the murderer, but for the
victim of even a very serious nonhomicide
crime, life TTT is not over and normally is
not beyond repair. Ibid. (plurality opinion). Although an offense like robbery or
rape is a serious crime deserving serious
punishment, Enmund, supra, at 797, 102
S.Ct. 3368, those crimes differ from homicide crimes in a moral sense.
It follows that, when compared to an
adult murderer, a juvenile offender who
did not kill or intend to kill has a twice
diminished moral culpability. The age of
the offender and the nature of the crime
each bear on the analysis.
As for the punishment, life without parole is the second most severe penalty
permitted by law. Harmelin, 501 U.S., at
1001, 111 S.Ct. 2680 (opinion of KENNE-
2027
DY, J.). It is true that a death sentence is

unique in its severity and irrevocability,
Gregg v. Georgia, 428 U.S. 153, 187, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint
opinion of Stewart, Powell, and STEVENS, JJ.); yet life without parole sentences share some characteristics with
death sentences that are shared by no
other sentences. The State does not execute the offender sentenced to life without
parole, but the sentence alters the offenders life by a forfeiture that is irrevocable.
It deprives the convict of the most basic
liberties without giving hope of restoration,
except perhaps by executive clemency
the remote possibility of which does not
mitigate the harshness of the sentence.
Solem, 463 U.S., at 300301, 103 S.Ct.
3001. As one court observed in overturning a life without parole sentence for a
juvenile defendant, this sentence means
denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future
might hold in store for the mind and spirit
of [the convict], he will remain in prison
for the rest of his days. Naovarath v.
State, 105 Nev. 525, 526, 779 P.2d 944
(1989).
The Court has recognized the severity of
sentences that deny convicts the possibility
of parole. In Rummel, 445 U.S. 263, 100
S.Ct. 1133, the Court rejected an Eighth
Amendment challenge to a life sentence
for a defendants third nonviolent felony
but stressed that the sentence gave the
defendant the possibility of parole. Noting that parole is an established variation
on imprisonment of convicted criminals, it
was evident that an analysis of the petitioners sentence could hardly ignore the
possibility that he will not actually be imprisoned for the rest of his life. Id., at
280281, 100 S.Ct. 1133 (internal quotation
marks omitted). And in Solem, the only
previous case striking down a sentence for
2028
a term of years as grossly disproportionate, the defendants sentence was deemed

far more severe than the life sentence we
considered in Rummel, because it did not
give the defendant the possibility of parole.
463 U.S., at 297, 103 S.Ct. 3001.
Life without parole is an especially
harsh punishment for a juvenile. Under
this sentence a juvenile offender will on
average serve more years and a greater
percentage of his life in prison than an
adult offender. A 16yearold and a 75
yearold each sentenced to life without
parole receive the same punishment in
name only. See Roper, supra, at 572, 125
S.Ct. 1183; cf. Harmelin, supra, at 996,
111 S.Ct. 2680 (In some cases TTT there
will be negligible difference between life
without parole and other sentences of imprisonmentfor example, TTT a lengthy
term sentence without eligibility for parole, given to a 65yearold man). This
reality cannot be ignored.
[1618] The penological justifications
for the sentencing practice are also relevant to the analysis. Kennedy, supra, at
, 128 S.Ct., at 266165; Roper, 543
U.S., at 571572, 125 S.Ct. 1183; Atkins,
supra, at 318320, 122 S.Ct. 2242. Criminal punishment can have different goals,
and choosing among them is within a legislatures discretion. See Harmelin, supra, at 999, 111 S.Ct. 2680 (opinion of
KENNEDY, J.) ([T]he Eighth Amendment does not mandate adoption of any
one penological theory). It does not follow, however, that the purposes and effects of penal sanctions are irrelevant to
the determination of Eighth Amendment
restrictions. A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense. With
respect to life without parole for juvenile
nonhomicide offenders, none of the goals
of penal sanctions that have been recognized as legitimateretribution, deter-
rence, incapacitation, and rehabilitation,

see Ewing, 538 U.S., at 25, 123 S.Ct. 1179
(plurality opinion)provides an adequate
justification.
[19] Retribution is a legitimate reason
to punish, but it cannot support the sentence at issue here. Society is entitled to
impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration
of the moral imbalance caused by the offense. But [t]he heart of the retribution
rationale is that a criminal sentence must
be directly related to the personal culpability of the criminal offender. Tison, 481
U.S., at 149, 107 S.Ct. 1676. And as Roper observed, [w]hether viewed as an attempt to express the communitys moral
outrage or as an attempt to right the
balance for the wrong to the victim, the
case for retribution is not as strong with a
minor as with an adult. 543 U.S., at 571,
125 S.Ct. 1183. The case becomes even
weaker with respect to a juvenile who did
not commit homicide. Roper found that
[r]etribution is not proportional if the
laws most severe penalty is imposed on
the juvenile murderer. Ibid. The considerations underlying that holding support
as well the conclusion that retribution does
not justify imposing the second most severe penalty on the less culpable juvenile
nonhomicide offender.
[20] Deterrence does not suffice to justify the sentence either. Roper noted that
the same characteristics that render juveniles less culpable than adults suggest TTT
that juveniles will be less susceptible to
deterrence.
Ibid. Because juveniles
lack of maturity and underdeveloped
sense of responsibility TTT often result in
impetuous and ill-considered actions and
decisions, Johnson v. Texas, 509 U.S. 350,
367, 113 S.Ct. 2658, 125 L.Ed.2d 290
(1993), they are less likely to take a possible punishment into consideration when
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
making decisions. This is particularly so

when that punishment is rarely imposed.
That the sentence deters in a few cases is
perhaps plausible, but [t]his argument
does not overcome other objections.
Kennedy, 554 U.S., at , 128 S.Ct., at
266162. Even if the punishment has
some connection to a valid penological
goal, it must be shown that the punishment is not grossly disproportionate in
light of the justification offered. Here, in
light of juvenile nonhomicide offenders diminished moral responsibility, any limited
deterrent effect provided by life without
parole is not enough to justify the sentence.
Incapacitation, a third legitimate reason
for imprisonment, does not justify the life
without parole sentence in question here.
Recidivism is a serious risk to public safety, and so incapacitation is an important
goal. See Ewing, supra, at 26, 123 S.Ct.
1179 (plurality opinion) (statistics show 67
percent of former inmates released from
state prisons are charged with at least one
serious new crime within three years).
But while incapacitation may be a legitimate penological goal sufficient to justify
life without parole in other contexts, it is
inadequate to justify that punishment for
juveniles who did not commit homicide.
To justify life without parole on the assumption that the juvenile offender forever
will be a danger to society requires the
sentencer to make a judgment that the
juvenile is incorrigible. The characteristics of juveniles make that judgment questionable. It is difficult even for expert
psychologists to differentiate between the
juvenile offender whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime
reflects irreparable corruption. Roper,
supra, at 572, 125 S.Ct. 1183. As one
court concluded in a challenge to a life
without parole sentence for a 14yearold,
incorrigibility is inconsistent with youth.
2029
Workman v. Commonwealth, 429 S.W.2d

374, 378 (Ky.1968).
Here one cannot dispute that this defendant posed an immediate risk, for he
had committed, we can assume, serious
crimes early in his term of supervised
release and despite his own assurances of
reform. Graham deserved to be separated from society for some time in order to
prevent what the trial court described as
an escalating pattern of criminal conduct, App. 394, but it does not follow that
he would be a risk to society for the rest
of his life. Even if the States judgment
that Graham was incorrigible were later
corroborated by prison misbehavior or
failure to mature, the sentence was still
disproportionate because that judgment
was made at the outset. A life without
parole sentence improperly denies the juvenile offender a chance to demonstrate
growth and maturity. Incapacitation cannot override all other considerations, lest
the Eighth Amendments rule against disproportionate sentences be a nullity.
[21] Finally there is rehabilitation, a
penological goal that forms the basis of
parole systems. See Solem, 463 U.S., at
300, 103 S.Ct. 3001; Mistretta v. United
States, 488 U.S. 361, 363, 109 S.Ct. 647,
102 L.Ed.2d 714 (1989). The concept of
rehabilitation is imprecise; and its utility
and proper implementation are the subject
of a substantial, dynamic field of inquiry
and dialogue. See, e.g., Cullen & Gendreau, Assessing Correctional Rehabilitation: Policy, Practice, and Prospects, 3
Criminal Justice 2000, pp. 119133 (2000)
(describing scholarly debates regarding
the effectiveness of rehabilitation over the
last several decades). It is for legislatures
to determine what rehabilitative techniques are appropriate and effective.
A sentence of life imprisonment without
parole, however, cannot be justified by the
2030
goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal.

By denying the defendant the right to
reenter the community, the State makes
an irrevocable judgment about that persons value and place in society. This
judgment is not appropriate in light of a
juvenile nonhomicide offenders capacity
for change and limited moral culpability.
A States rejection of rehabilitation, moreover, goes beyond a mere expressive judgment. As one amicus notes, defendants
serving life without parole sentences are
often denied access to vocational training
and other rehabilitative services that are
available to other inmates. See Brief for
Sentencing Project as Amicus Curiae 11
13. For juvenile offenders, who are most
in need of and receptive to rehabilitation,
see Brief for J. Lawrence Aber et al. as
Amici Curiae 2831 (hereinafter Aber
Brief), the absence of rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident.
In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile
nonhomicide offenders; and the severity of
life without parole sentences all lead to the
conclusion that the sentencing practice under consideration is cruel and unusual.
This Court now holds that for a juvenile
offender who did not commit homicide the
Eighth Amendment forbids the sentence of
life without parole. This clear line is necessary to prevent the possibility that life
without parole sentences will be imposed
on juvenile nonhomicide offenders who are
not sufficiently culpable to merit that punishment. Because [t]he age of 18 is the
point where society draws the line for
adulthood, those who were below that age
when the offense was committed may not
be sentenced to life without parole for a
nonhomicide crime.
574, 125 S.Ct. 1183.
Roper, 543 U.S., at
[22] A State is not required to guarantee eventual freedom to a juvenile offender

convicted of a nonhomicide crime. What
the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is
for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that
while the Eighth Amendment forbids a
State from imposing a life without parole
sentence on a juvenile nonhomicide offender, it does not require the State to release
that offender during his natural life.
Those who commit truly horrifying crimes
as juveniles may turn out to be irredeemable, and thus deserving of incarceration for
the duration of their lives. The Eighth
Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood
will remain behind bars for life. It does
forbid States from making the judgment at
the outset that those offenders never will
be fit to reenter society.
C
Categorical rules tend to be imperfect,
but one is necessary here. Two alternative approaches are not adequate to address the relevant constitutional concerns.
First, the State argues that the laws of
Florida and other States governing criminal procedure take sufficient account of the
age of a juvenile offender. Here, Florida
notes that under its law prosecutors are
required to charge 16 and 17yearold
offenders as adults only for certain serious
felonies; that prosecutors have discretion
to charge those offenders as adults for
other felonies; and that prosecutors may
not charge nonrecidivist 16 and 17year
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
old offenders as adults for misdemeanors.

Brief for Respondent 54 (citing Fla. Stat.
985.227 (2003)). The State also stresses
that in only the narrowest of circumstances does Florida law impose no age
limit whatsoever for prosecuting juveniles
in adult court. Brief for Respondent 54.
[23] Florida is correct to say that state
laws requiring consideration of a defendants age in charging decisions are salutary. An offenders age is relevant to the
Eighth Amendment, and criminal procedure laws that fail to take defendants
youthfulness into account at all would be
flawed. Florida, like other States, has
made substantial efforts to enact comprehensive rules governing the treatment of
youthful offenders by its criminal justice
system. See generally Fla. Stat. 958 et
seq. (2007).
[24] The provisions the State notes
are, nonetheless, by themselves insufficient to address the constitutional concerns at issue. Nothing in Floridas laws
prevents its courts from sentencing a juvenile nonhomicide offender to life without
parole based on a subjective judgment that
the defendants crimes demonstrate an irretrievably depraved character. Roper,
supra, at 572, 125 S.Ct. 1183. This is inconsistent with the Eighth Amendment.
Specific cases are illustrative. In Grahams case the sentencing judge decided to
impose life without parolea sentence
greater than that requested by the prosecutorfor Grahams armed burglary conviction. The judge did so because he concluded that Graham was incorrigible:
[Y]ou decided that this is how you were
going to lead your life and that there is
nothing that we can do for you. TTT We
cant do anything to deter you. App. 394.
Another example comes from Sullivan
v. Florida, No. 087621. Sullivan was
argued the same day as this case, but the
Court has now dismissed the writ of certio-
2031
rari in Sullivan as improvidently granted.

Post, p. . The facts, however, demonstrate the flaws of Floridas system. The
petitioner, Joe Sullivan, was prosecuted as
an adult for a sexual assault committed
when he was 13 years old. Noting Sullivans past encounters with the law, the
sentencing judge concluded that, although
Sullivan had been given opportunity after
opportunity to upright himself and take
advantage of the second and third chances
hes been given, he had demonstrated
himself to be unwilling to follow the law
and needed to be kept away from society
for the duration of his life. Brief for Respondent in Sullivan v. Florida, O. T.
2009, No. 087621, p. 6. The judge sentenced Sullivan to life without parole. As
these examples make clear, existing state
laws, allowing the imposition of these sentences based only on a discretionary, subjective judgment by a judge or jury that
the offender is irredeemably depraved, are
insufficient to prevent the possibility that
the offender will receive a life without
parole sentence for which he or she lacks
the moral culpability.
Another possible approach would be to
hold that the Eighth Amendment requires
courts to take the offenders age into consideration as part of a case-specific gross
disproportionality inquiry, weighing it
against the seriousness of the crime. This
approach would allow courts to account for
factual differences between cases and to
impose life without parole sentences for
particularly heinous crimes. Few, perhaps
no, judicial responsibilities are more difficult than sentencing. The task is usually
undertaken by trial judges who seek with
diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged
society.
The case-by-case approach to sentencing must, however, be confined by some
2032
boundaries. The dilemma of juvenile

sentencing demonstrates this. For even
if we were to assume that some juvenile nonhomicide offenders might have
sufficient psychological maturity, and at
the same time demonstrat[e] sufficient
depravity, Roper, 543 U.S., at 572, 125
S.Ct. 1183, to merit a life without parole sentence, it does not follow that
courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that
have the capacity for change. Roper
rejected the argument that the Eighth
Amendment required only that juries be
told they must consider the defendants
age as a mitigating factor in sentencing.
The Court concluded that an unacceptable likelihood exists that the brutality
or cold-blooded nature of any particular
crime would overpower mitigating arguments based on youth as a matter of
course, even where the juvenile offenders objective immaturity, vulnerability,
and lack of true depravity should require a sentence less severe than
death. Id., at 573, 125 S.Ct. 1183.
Here, as with the death penalty, [t]he
differences between juvenile and adult
offenders are too marked and well understood to risk allowing a youthful
person to receive a sentence of life
without parole for a nonhomicide crime
despite insufficient culpability. Id., at
572573, 125 S.Ct. 1183.
Another problem with a case-by-case approach is that it does not take account of
special difficulties encountered by counsel
in juvenile representation. As some amici
note, the features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings.
Juveniles mistrust adults and have limited
understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than
adults to work effectively with their lawyers to aid in their defense. Brief for
NAACP Legal Defense & Education Fund
et al. as Amici Curiae 712; Henning,
Loyalty, Paternalism, and Rights: Client
Counseling Theory and the Role of Childs
Counsel in Delinquency Cases, 81 Notre
Dame L.Rev. 245, 272273 (2005). Difficulty in weighing long-term consequences;
a corresponding impulsiveness; and reluctance to trust defense counsel seen as part
of the adult world a rebellious youth rejects, all can lead to poor decisions by one
charged with a juvenile offense. Aber
Brief 35. These factors are likely to impair the quality of a juvenile defendants
representation. Cf. Atkins, 536 U.S., at
320, 122 S.Ct. 2242 (Mentally retarded
defendants may be less able to give meaningful assistance to their counsel). A categorical rule avoids the risk that, as a
result of these difficulties, a court or jury
will erroneously conclude that a particular
juvenile is sufficiently culpable to deserve
life without parole for a nonhomicide.
Finally, a categorical rule gives all juvenile nonhomicide offenders a chance to
demonstrate maturity and reform. The
juvenile should not be deprived of the opportunity to achieve maturity of judgment
and self-recognition of human worth and
potential. In Roper, that deprivation resulted from an execution that brought life
to its end. Here, though by a different
dynamic, the same concerns apply. Life in
prison without the possibility of parole
gives no chance for fulfillment outside prison walls, no chance for reconciliation with
society, no hope. Maturity can lead to
that considered reflection which is the
foundation for remorse, renewal, and rehabilitation. A young person who knows
that he or she has no chance to leave
prison before lifes end has little incentive
to become a responsible individual. In
some prisons, moreover, the system itself
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
becomes complicit in the lack of development. As noted above, see supra, at

2029 2030, it is the policy in some prisons
to withhold counseling, education, and rehabilitation programs for those who are
ineligible for parole consideration. A categorical rule against life without parole for
juvenile nonhomicide offenders avoids the
perverse consequence in which the lack of
maturity that led to an offenders crime is
reinforced by the prison term.
Terrance Grahams sentence guarantees
he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that
the bad acts he committed as a teenager
are not representative of his true character, even if he spends the next half century
attempting to atone for his crimes and
learn from his mistakes. The State has
denied him any chance to later demonstrate that he is fit to rejoin society based
solely on a nonhomicide crime that he committed while he was a child in the eyes of
the law. This the Eighth Amendment
does not permit.
D
[25] There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the
United States adheres to a sentencing
practice rejected the world over. This
observation does not control our decision.
The judgments of other nations and the
international community are not dispositive as to the meaning of the Eighth
Amendment. But [t]he climate of international opinion concerning the acceptability of a particular punishment is also
not irrelevant. Enmund, 458 U.S., at
796, n. 22, 102 S.Ct. 3368. The Court has
looked beyond our Nations borders for
support for its independent conclusion that
a particular punishment is cruel and un-
2033
usual. See, e.g., Roper, 543 U.S., at 575

578, 125 S.Ct. 1183; Atkins, supra, at 317
318, n. 21, 122 S.Ct. 2242; Thompson, 487
U.S., at 830, 108 S.Ct. 2687 (plurality opinion); Enmund, supra, at 796797, n. 22,
102 S.Ct. 3368; Coker, 433 U.S., at 596, n.
10, 97 S.Ct. 2861 (plurality opinion); Trop,
opinion).
Today we continue that longstanding
practice in noting the global consensus
against the sentencing practice in question.
A recent study concluded that only 11
nations authorize life without parole for
juvenile offenders under any circumstances; and only 2 of them, the United
States and Israel, ever impose the punishment in practice. See M. Leighton & C.
de la Vega, Sentencing Our Children to
Die in Prison: Global Law and Practice 4
(2007). An updated version of the study
concluded that Israels laws allow for parole review of juvenile offenders serving
life terms, but expressed reservations
about how that parole review is implemented. De la Vega & Leighton, Sentencing Our Children to Die in Prison: Global
Law and Practice, 42 U.S.F.L.Rev. 983,
10021003 (2008). But even if Israel is
counted as allowing life without parole for
juvenile offenders, that nation does not
appear to impose that sentence for nonhomicide crimes; all of the seven Israeli
prisoners whom commentators have identified as serving life sentences for juvenile
crimes were convicted of homicide or attempted homicide. See Amnesty International, Human Rights Watch, The Rest of
Their Lives: Life without Parole for Child
Offenders in the United States 106, n. 322
(2005); Memorandum and Attachment
from Ruth Levush, Law Library of Congress, to Supreme Court Library (Feb. 16,
2010) (available in Clerk of Courts case
file).
2034
Thus, as petitioner contends and respondent does not contest, the United States is
the only Nation that imposes life without
parole sentences on juvenile nonhomicide
offenders. We also note, as petitioner and
his amici emphasize, that Article 37(a) of
the United Nations Convention on the
Rights of the Child, Nov. 20, 1989, 1577
U.N.T.S. 3 (entered into force Sept. 2,
1990), ratified by every nation except the
United States and Somalia, prohibits the
imposition of life imprisonment without
possibility of release TTT for offences committed by persons below eighteen years of
age. Brief for Petitioner 66; Brief for
Amnesty International et al. as Amici Curiae 1517. As we concluded in Roper
with respect to the juvenile death penalty,
the United States now stands alone in a
world that has turned its face against life
without parole for juvenile nonhomicide offenders. 543 U.S., at 577, 125 S.Ct. 1183.
The States amici stress that no international legal agreement that is binding on
the United States prohibits life without
parole for juvenile offenders and thus urge
us to ignore the international consensus.
See Brief for Solidarity Center for Law
and Justice et al. as Amici Curiae 1416;
Brief for Sixteen Members of United
States House of Representatives as Amici
Curiae 4043. These arguments miss the
mark. The question before us is not
whether international law prohibits the
United States from imposing the sentence
at issue in this case. The question is
whether that punishment is cruel and unusual. In that inquiry, the overwhelming
weight of international opinion against life
without parole for nonhomicide offenses

committed by juveniles provide[s] respected and significant confirmation for
our own conclusions. Roper, supra, at
572, 125 S.Ct. 1183.
The debate between petitioners and respondents amici over whether there is a
binding jus cogens norm against this sentencing practice is likewise of no import.
See Brief for Amnesty International 1023;
Brief for Sixteen Members of United
States House of Representatives 440.
The Court has treated the laws and practices of other nations and international
agreements as relevant to the Eighth
Amendment not because those norms are
binding or controlling but because the
judgment of the worlds nations that a
particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Courts rationale has
respected reasoning to support it.
*
The Constitution prohibits the imposition of a life without parole sentence on a

homicide. A State need not guarantee the
offender eventual release, but if it imposes
a sentence of life it must provide him or
her with some realistic opportunity to obtain release before the end of that term.
The judgment of the First District Court
of Appeal of Florida is reversed, and the
case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
APPENDIX
I.
JURISDICTIONS THAT PERMIT LIFE WITHOUT PAROLE FOR JUVENILE

NONHOMICIDE OFFENDERS
Alabama
Arizona
Arkansas
Ala.Code 1215203 (Supp.2009); 13A33, 13A59(c), 13A661 (2005);

13A75 (Supp.2009)
Ariz.Rev.Stat. Ann. 13501, 131423 (West 2010)
Ark.Code 927318(b) (2009); 54501(c) (Supp.2009)
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
2035
APPENDIXContinued
California
Delaware
District of Columbia
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Louisiana
Maryland
Michigan
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Hampshire
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Utah
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Federal
II.
JURISDICTIONS THAT PERMIT LIFE WITHOUT PAROLE FOR JUVENILE

OFFENDERS CONVICTED OF HOMICIDE CRIMES ONLY
Connecticut
Hawaii
Maine
Massachusetts
New Jersey
New Mexico
Vermont
III.
Cal.Penal Code Ann. 667.7(a)(2) (1999); 1170.17 (2004)

Del.Code Ann., Tit., 10, 1010 (Supp.2008); id., Tit., 11, 773(c) (2003)
D.C.Code 162307 (2009 Supp. Pamphlet); 223020 (Supp.2007)
Fla. Stat. 810.02, 921.002(1)(e), 985.557 (2007)
Georgia Code Ann. 151130.2 (2008); 1661(b) (2007)
Idaho Code 186503 (Lexis 2005); 192513, 20509 (Lexis Supp.2009)
Ill. Comp. Stat., ch. 705, 405/5805, 405/5130 (West 2008); id., ch. 720,
5/1213(b)(3) (West 2008); id., ch. 730, 5/333(d) (West 2008)
Ind.Code 313036(1); 355028.5(a) (West 2004)
Iowa Code 232.45(6), 709.2, 902.1 (2009)
La. Child. Code Ann., Arts. 305, 857(A), (B) (West Supp.2010); La. Stat. Ann.
14:44 (West 2007)
Md. Cts. & Jud. Proc.Code Ann. 38A03(d)(1), 38A06(a)(2) (Lexis 2006);
Md.Crim. Law Code Ann. 3303(d)(2),(3) (Lexis Supp.2009)
Mich. Comp. Laws Ann. 712A.4 (West 2002); 750.520b(2)(c) (West Supp.
2009); 769.1 (West 2000)
Minn.Stat. 260B.125(1), 609.3455(2) (2008)
Miss.Code Ann. 4321157 (2009); 97353, 991981 (2007); 991983
(2006)
Mo.Rev.Stat. 211.071, 558.018 (2000)
Neb.Rev.Stat. 28105, 28416(8)(a), 292204(1), (3), 43247, 43276 (2008)
Nev.Rev.Stat. 62B.330, 200.366 (2009)
N.H.Rev.Stat. Ann. 169B:24; 628:1 (2007); 632A:2, 651:6 (Supp.2009)
N.Y. Penal Law Ann. 30.00, 60.06 (West 2009); 490.55 (West 2008)
N.C. Gen.Stat. Ann. 7B2200, 15A1340.16B(a) (Lexis 2009)
N.D. Cent.Code Ann. 12.10401 (Lexis 1997); 12.12003 (Lexis Supp.
2009); 12.13201 (Lexis 1997)
Ohio Rev.Code Ann. 2152.10 (Lexis 2007); 2907.02 (Lexis 2006);
2971.03(A)(2) (2010 Lexis Supp. Pamphlet)
Okla. Stat., Tit. 10A, 25204, 25205, 25206 (2009 West Supp.); id., Tit.
21, 1115 (2007 West Supp.)
Ore.Rev.Stat. 137.707, 137.719(1) (2009)
42 Pa. Cons.Stat. 6355(a) (2000); 18 id., 3121(e)(2) (2008); 61 id., 6137(a)
(2009)
R.I. Gen. Laws 1417, 1417.1, 11473.2 (Lexis 2002)
S.C.Code Ann. 63191210 (2008 Supp. Pamphlet); 1611311(B)
(Westlaw 2009)
S.D. Codified Laws 26113.1 (Supp.2009); 26114 (2004); 2231,
2261(2),(3) (2006); 24154 (2004); 22191, 22221 (2006)
Tenn.Code Ann. 371134, 4035120(g) (Westlaw 2010)
Utah Code Ann. 78A6602, 78A6703, 765302 (Lexis 2008)
Va.Code Ann. 16.1269.1, 18.261, 53.1151(B1) (2009)
Wash. Rev.Code 13.40.110 (2009 Supp.); 9A.04.050, 9.94A.030(34),
9.94A.570 (2008)
W. Va.Code Ann. 49510 (Lexis 2009); 61214a(a) (Lexis 2005)
Wis. Stat. 938.18, 938.183 (20072008); 939.62(2m)(c) (Westlaw 2005)
Wyo. Stat. Ann. 62306(d),(e), 146203 (2009)
18 U.S.C. 2241 (2006 ed. and Supp. II); 5032 (2006 ed.)
Conn. Gen.Stat. 53a35a (2009)

Haw.Rev.Stat. 57122(d) (2006); 706656(1) (2008 Supp. Pamphlet)
Me.Rev.Stat. Ann., Tit. 15, 3101(4) (Supp.2009); id., Tit. 17a, 1251 (2006)
Mass Gen. Laws ch. 119, 74; id., ch. 265, 2 (2008)
N.J. Stat. Ann. 2A:4A26 (West Supp.2009); 2C:113(b)(2) (West Supp.
2009)
N.M. Stat. Ann. 311814 (Supp.2009); 311815.2(A) (Westlaw 2010)
Vt. Stat. Ann., Tit. 33, 5204 (2009 Cum.Supp.); id., Tit. 13, 2303 (2009)
JURISDICTIONS THAT FORBID LIFE WITHOUT PAROLE FOR JUVENILE

OFFENDERS
2036
APPENDIXContinued
Alaska
Colorado
Montana
Kansas
Kentucky
Texas
Alaska Stat. 12.55.015(g) (2008)

Colo.Rev.Stat. Ann. 181.3401(4)(b) (2009)
Mont.Code Ann. 4618222(1) (2009)
Kan. Stat. Ann. 214622 (West 2007)
Ky.Rev.Stat. Ann. 640.040 (West 2008); Shepherd v. Commonwealth, 251
S.W.3d 309, 320321 (Ky.2008)
Tex. Penal Code Ann. 12.31 (West Supp.2009)

GINSBURG and Justice SOTOMAYOR
join, concurring.
In his dissenting opinion, Justice
THOMAS argues that todays holding is
not entirely consistent with the controlling
opinions in Lockyer v. Andrade, 538 U.S.
63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003),
Ewing v. California, 538 U.S. 11, 123 S.Ct.
1179, 155 L.Ed.2d 108 (2003), Harmelin v.
Michigan, 501 U.S. 957, 111 S.Ct. 2680,
115 L.Ed.2d 836 (1991), and Rummel v.
Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63
L.Ed.2d 382 (1980). Post, at 2046 2047.
Given that evolving standards of decency
have played a central role in our Eighth
Amendment jurisprudence for at least a
century, see Weems v. United States, 217
U.S. 349, 373378, 30 S.Ct. 544, 54 L.Ed.
793 (1910), this argument suggests the dissenting opinions in those cases more accurately describe the law today than does
Justice THOMAS rigid interpretation of
the
Amendment.
Society
changes.
Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments
that did not seem cruel and unusual at one
time may, in the light of reason and experience, be found cruel and unusual at a
later time; unless we are to abandon the
moral commitment embodied in the Eighth
Amendment, proportionality review must
never become effectively obsolete, post, at
2046 2047, and n. 2.
While Justice THOMAS would apparently not rule out a death sentence for a
$50 theft by a 7yearold, see post, at
2044, 2047 2048, n. 3, the Court wisely
rejects his static approach to the law.
Standards of decency have evolved since

1980. They will never stop doing so.
Chief Justice ROBERTS, concurring in
the judgment.
I agree with the Court that Terrance
Grahams sentence of life without parole
violates the Eighth Amendments prohibition on cruel and unusual punishments.
Unlike the majority, however, I see no
need to invent a new constitutional rule of
dubious provenance in reaching that conclusion. Instead, my analysis is based on
an application of this Courts precedents,
in particular (1) our cases requiring narrow proportionality review of noncapital
sentences and (2) our conclusion in Roper
v. Simmons, 543 U.S. 551, 125 S.Ct. 1183,
161 L.Ed.2d 1 (2005), that juvenile offenders are generally less culpable than adults
who commit the same crimes.
These cases expressly allow courts addressing allegations that a noncapital sentence violates the Eighth Amendment to
consider the particular defendant and particular crime at issue. The standards for
relief under these precedents are rigorous,
and should be. But here Grahams juvenile statustogether with the nature of his
criminal conduct and the extraordinarily
severe punishment imposedlead me to
conclude that his sentence of life without
parole is unconstitutional.
I
Our Court has struggled with whether
and how to apply the Cruel and Unusual
Punishments Clause to sentences for noncapital crimes. Some of my colleagues
have raised serious and thoughtful ques-
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
tions about whether, as an original matter,

the Constitution was understood to require
any degree of proportionality between
noncapital offenses and their corresponding punishments. See, e.g., Harmelin v.
Michigan, 501 U.S. 957, 962994, 111 S.Ct.
2680, 115 L.Ed.2d 836 (1991) (principal
opinion of SCALIA, J.); post, at 2044
2045, and n. 1 (THOMAS, J., dissenting).
Neither party here asks us to reexamine
our precedents requiring such proportionality, however, and so I approach this case
by trying to apply our past decisions to the
facts at hand.
A
Grahams case arises at the intersection of two lines of Eighth Amendment
precedent. The first consists of decisions
holding that the Cruel and Unusual Punishments Clause embraces a narrow proportionality principle that we apply, on a
case-by-case basis, when asked to review
noncapital sentences. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003) (internal quotation marks omitted); Solem v. Helm, 463
U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d
637 (1983); Ewing v. California, 538 U.S.
11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108
(2003) (plurality opinion); Harmelin, supra, at 996997, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring
in judgment). This narrow proportionality principle does not grant judges blanket authority to second-guess decisions
made by legislatures or sentencing
courts. On the contrary, a reviewing
court will only rarely need to engage
in extended analysis to determine that a
sentence is not constitutionally disproportionate, Solem, supra, at 290, n. 16, 103
S.Ct. 3001 (emphasis added), and successful challenges to noncapital sentences will be all the more exceedingly
rare, Rummel v. Estelle, 445 U.S. 263,
2037
272, 100 S.Ct. 1133, 63 L.Ed.2d 382

(1980).
We have not established a clear or consistent path for courts to follow in applying the highly deferential narrow proportionality analysis. Lockyer, supra, at 72,
123 S.Ct. 1166. We have, however, emphasized the primacy of the legislature in
setting sentences, the variety of legitimate
penological schemes, the state-by-state diversity protected by our federal system,
and the requirement that review be guided
by objective, rather than subjective, factors. Ewing, supra, at 23, 123 S.Ct. 1179
(plurality opinion); Harmelin, supra, at
9981001, 111 S.Ct. 2680 (opinion of KENNEDY, J.). Most importantly, however,
we have explained that the Eighth Amendment does not require strict proportionality between crime and sentence ; rather, it forbids only extreme sentences
that are grossly disproportionate to the
crime. Ewing, supra, at 23, 123 S.Ct.
1179 (plurality opinion) (quoting Harmelin, supra, at 1001, 111 S.Ct. 2680 (opinion
of KENNEDY, J.)).
Our cases indicate that courts conducting narrow proportionality review should
begin with a threshold inquiry that compares the gravity of the offense and the
harshness of the penalty. Solem, 463
U.S., at 290291, 103 S.Ct. 3001. This
analysis can consider a particular offenders mental state and motive in committing
the crime, the actual harm caused to his
victim or to society by his conduct, and any
prior criminal history. Id., at 292294,
296297, and n. 22, 103 S.Ct. 3001 (considering motive, past criminal conduct, alcoholism, and propensity for violence of the
particular defendant); see also Ewing, supra, at 2830, 123 S.Ct. 1179 (plurality
opinion) (examining defendants criminal
history); Harmelin, 501 U.S., at 1001
1004, 111 S.Ct. 2680 (opinion of KENNE-
2038
DY, J.) (noting specific details of the particular crime of conviction).

Only in the rare case in which a threshold comparison of the crime committed and
the sentence imposed leads to an inference
of gross disproportionality, id., at 1005,
111 S.Ct. 2680, should courts proceed to an
intrajurisdictional comparison of the sentence at issue with those imposed on other
criminals in the same jurisdiction, and an
interjurisdictional comparison with sentences imposed for the same crime in other
jurisdictions. Solem, supra, at 291292,
103 S.Ct. 3001. If these subsequent comparisons confirm the inference of gross
disproportionality, courts should invalidate
the sentence as a violation of the Eighth
Amendment.
B
The second line of precedent relevant to
assessing Grahams sentence consists of
our cases acknowledging that juvenile offenders are generallythough not necessarily in every caseless morally culpable
than adults who commit the same crimes.
This insight animated our decision in
S.Ct. 2687, 101 L.Ed.2d 702 (1988), in
which we invalidated a capital sentence
imposed on a juvenile who had committed
his crime under the age of 16. More
recently, in Roper, 543 U.S. 551, 125 S.Ct.
1183, we extended the prohibition on executions to those who committed their
crimes before the age of 18.
Both Thompson and Roper arose in the
unique context of the death penalty, a
punishment that our Court has recognized
must be limited to those offenders who
commit a narrow category of the most
serious crimes and whose extreme culpability makes them the most deserving of
execution. 543 U.S., at 568, 125 S.Ct.
1183 (quoting Atkins v. Virginia, 536 U.S.
304, 319, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002)). Roper s prohibition on the juvenile death penalty followed from our conclusion that [t]hree general differences
between juveniles under 18 and adults
demonstrate that juvenile offenders cannot
with reliability be classified among the
worst offenders. 543 U.S., at 569, 125
S.Ct. 1183. These differences are a lack of
maturity and an underdeveloped sense of
responsibility, a heightened susceptibility
to negative influences and outside pressures, and the fact that the character of a
juvenile is more transitory and less
fixed than that of an adult. Id., at 569
570, 125 S.Ct. 1183. Together, these factors establish the diminished culpability
of juveniles, id., at 571, 125 S.Ct. 1183,
and render suspect any conclusion that
juveniles are among the worst offenders
for whom the death penalty is reserved,
id., at 570, 125 S.Ct. 1183.
Today, the Court views Roper as providing the basis for a new categorical rule
that juveniles may never receive a sentence of life without parole for nonhomicide crimes. I disagree. In Roper, the
Court tailored its analysis of juvenile characteristics to the specific question whether
juvenile offenders could constitutionally be
subject to capital punishment. Our answer that they could not be sentenced to
death was based on the explicit conclusion
that they cannot with reliability be classified among the worst offenders. Id., at
569, 125 S.Ct. 1183 (emphasis added).
This conclusion does not establish that
juveniles can never be eligible for life without parole. A life sentence is of course far
less severe than a death sentence, and we
have never required that it be imposed
only on the very worst offenders, as we
have with capital punishment. Treating
juvenile life sentences as analogous to capital punishment is at odds with our longstanding view that the death penalty is
different from other punishments in kind
2039
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
rather than degree. Solem, supra, at

294, 103 S.Ct. 3001. It is also at odds with
Roper itself, which drew the line at capital
punishment by blessing juvenile sentences
that are less severe than death despite
involving forfeiture of some of the most
basic liberties. 543 U.S., at 573574, 125
S.Ct. 1183. Indeed, Roper explicitly relied
on the possible imposition of life without
parole on some juvenile offenders. Id., at
572, 125 S.Ct. 1183.
But the fact that Roper does not support
a categorical rule barring life sentences for
all juveniles does not mean that a criminal
defendants age is irrelevant to those sentences. On the contrary, our cases establish that the narrow proportionality review applicable to noncapital cases itself
takes the personal culpability of the offender into account in examining whether
a given punishment is proportionate to the
crime. Solem, supra, at 292, 103 S.Ct.
3001. There is no reason why an offenders juvenile status should be excluded
from the analysis. Indeed, given Roper s
conclusion that juveniles are typically less
blameworthy than adults, 543 U.S., at 571,
125 S.Ct. 1183, an offenders juvenile status can play a central role in the inquiry.
tion of the categorical rule declared by the

Court. But Roper s conclusion that juveniles are typically less culpable than adults
has pertinence beyond capital cases, and
rightly informs the case-specific inquiry I
believe to be appropriate here.
In short, our existing precedent already
provides a sufficient framework for assessing the concerns outlined by the majority.
Not every juvenile receiving a life sentence
will prevail under this approach. Not every juvenile should. But all will receive
the protection that the Eighth Amendment
requires.
II
Applying the narrow proportionality
framework to the particular facts of this
case, I conclude that Grahams sentence of
life without parole violates the Eighth
Amendment.*
A
Justice THOMAS disagrees with even

our limited reliance on Roper on the
ground that the present case does not
involve capital punishment. Post, at 2056
(dissenting opinion). That distinction is
importantindeed, it underlies our rejec-
I begin with the threshold inquiry comparing the gravity of Grahams conduct to
the harshness of his penalty. There is no
question that the crime for which Graham
received his life sentencearmed burglary
of a nondomicil with an assault or batteryis a serious crime deserving serious
punishment. Enmund v. Florida, 458
U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d
1140 (1982). So too is the home invasion
robbery that was the basis of Grahams
* Justice ALITO suggests that Graham has failed

to preserve any challenge to his sentence
based on the narrow, as-applied proportionality principle. Post, at 2058 (dissenting
opinion). I disagree. It is true that Graham
asks us to declare, categorically, that no juvenile convicted of a nonhomicide offense may
ever be subject to a sentence of life without
parole. But he claims that this rule is warranted under the narrow proportionality principle we set forth in Solem v. Helm, 463 U.S.
277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983),
Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct.

2680, 115 L.Ed.2d 836 (1991), and Ewing v.
California, 538 U.S. 11, 123 S.Ct. 1179, 155
L.Ed.2d 108 (2003). Brief for Petitioner 30,
31, 5464. Insofar as he relies on that framework, I believe we may do so as well, even if
our analysis results in a narrower holding
than the categorical rule Graham seeks. See
also Reply Brief for Petitioner 15, n. 8 ([T]he
Court could rule narrowly in this case and
hold only that petitioners sentence of life
without parole was unconstitutionally disproportionate).
2040
probation violation. But these crimes are

certainly less serious than other crimes,
such as murder or rape.
As for Grahams degree of personal culpability, he committed the relevant offenses when he was a juvenilea stage at
which, Roper emphasized, ones culpability or blameworthiness is diminished, to a
substantial degree, by reason of youth and
immaturity. 543 U.S., at 571, 125 S.Ct.
1183. Grahams age places him in a significantly different category from the defendants in Rummel, Harmelin, and Ewing,
all of whom committed their crimes as
adults. Grahams youth made him relatively more likely to engage in reckless
and dangerous criminal activity than an
adult; it also likely enhanced his susceptibility to peer pressure. See, e.g., Roper,
supra, at 572, 125 S.Ct. 1183; Johnson v.
Texas, 509 U.S. 350, 367, 113 S.Ct. 2658,
125 L.Ed.2d 290 (1993); Eddings v. Oklahoma, 455 U.S. 104, 115117, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982). There is no
reason to believe that Graham should be
denied the general presumption of diminished culpability that Roper indicates
should apply to juvenile offenders. If anything, Grahams in-court statementsincluding his request for a second chance so
that he could do whatever it takes to get
to the NFLunderscore his immaturity.
App. 380.
The fact that Graham committed the
crimes that he did proves that he was
dangerous and deserved to be punished.
But it does not establish that he was particularly dangerousat least relative to
the murderers and rapists for whom the
sentence of life without parole is typically
reserved. On the contrary, his lack of
prior criminal convictions, his youth and
immaturity, and the difficult circumstances
of his upbringing noted by the majority,
ante, at 2018, all suggest that he was
markedly less culpable than a typical adult

who commits the same offenses.
Despite these considerations, the trial
court sentenced Graham to life in prison
without the possibility of parole. This is
the second-harshest sentence available under our precedents for any crime, and the
most severe sanction available for a nonhomicide offense. See Kennedy v. Louisiana, 554 U.S. , 128 S.Ct. 2641, 171
L.Ed.2d 525 (2008). Indeed, as the majority notes, Grahams sentence far exceeded
the punishment proposed by the Florida
Department of Corrections (which suggested a sentence of four years, Brief for
Petitioner 20), and the state prosecutors
(who asked that he be sentenced to 30
years in prison for the armed burglary,
App. 388). No one in Grahams case other
than the sentencing judge appears to have
believed that Graham deserved to go to
prison for life.
Based on the foregoing circumstances, I
conclude that there is a strong inference
that Grahams sentence of life imprisonment without parole was grossly disproportionate in violation of the Eighth
Amendment. I therefore proceed to the
next steps of the proportionality analysis.
B
Both intrajurisdictional and interjurisdictional comparisons of Grahams sentence confirm the threshold inference of
disproportionality.
Grahams sentence was far more severe
than that imposed for similar violations of
Florida law, even without taking juvenile
status into account. For example, individuals who commit burglary or robbery offenses in Florida receive average sentences of less than 5 years and less than 10
years, respectively. Florida Dept. of Corrections, Annual Report FY 20072008:
The Guidebook to Corrections in Florida
35.
Unsurprisingly, Floridas juvenile
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
criminals receive similarly low sentences

typically less than five years for burglary
and less than seven years for robbery.
Id., at 36. Grahams life without parole
sentence was far more severe than the
average sentence imposed on those convicted of murder or manslaughter, who
typically receive under 25 years in prison.
Id., at 35. As the Court explained in
Solem, 463 U.S., at 291, 103 S.Ct. 3001,
[i]f more serious crimes are subject to the
same penalty, or to less serious penalties,
that is some indication that the punishment at issue may be excessive.
Finally, the inference that Grahams
sentence is disproportionate is further validated by comparison to the sentences imposed in other domestic jurisdictions. As
the majority opinion explains, Florida is an
outlier in its willingness to impose sentences of life without parole on juveniles
convicted of nonhomicide crimes. See
ante, at 2024.
III
So much for Graham. But what about
Milagro Cunningham, a 17yearold who
beat and raped an 8yearold girl before
leaving her to die under 197 pounds of
rock in a recycling bin in a remote landfill?
See Musgrave, Cruel or Necessary? Life
Terms for Youths Spur National Debate,
Palm Beach Post, Oct. 15, 2009, p. 1A. Or
Nathan Walker and Jakaris Taylor, the
Florida juveniles who together with their
friends gang-raped a woman and forced
her to perform oral sex on her 12yearold
son? See 3 Sentenced to Life for Gang
Rape of Mother, Associated Press, Oct. 14,
2009. The fact that Graham cannot be
sentenced to life without parole for his
conduct says nothing whatever about these
offenders, or others like them who commit
nonhomicide crimes far more reprehensible than the conduct at issue here. The
Court uses Grahams case as a vehicle to
2041
proclaim a new constitutional ruleapplicable well beyond the particular facts of

Grahams casethat a sentence of life
without parole imposed on any juvenile for
any nonhomicide offense is unconstitutional. This categorical conclusion is as unnecessary as it is unwise.
A holding this broad is unnecessary because the particular conduct and circumstances at issue in the case before us are
not serious enough to justify Grahams
sentence. In reaching this conclusion,
there is no need for the Court to decide
whether that same sentence would be constitutional if imposed for other more heinous nonhomicide crimes.
A more restrained approach is especially
appropriate in light of the Courts apparent recognition that it is perfectly legitimate for a juvenile to receive a sentence of
life without parole for committing murder.
This means that there is nothing inherently unconstitutional about imposing sentences of life without parole on juvenile
offenders; rather, the constitutionality of
such sentences depends on the particular
crimes for which they are imposed. But if
the constitutionality of the sentence turns
on the particular crime being punished,
then the Court should limit its holding to
the particular offenses that Graham committed here, and should decline to consider
other hypothetical crimes not presented by
this case.
In any event, the Courts categorical
conclusion is also unwise. Most importantly, it ignores the fact that some nonhomicide crimeslike the ones committed by
Milagro Cunningham, Nathan Walker, and
Jakaris Taylorare especially heinous or
grotesque, and thus may be deserving of
more severe punishment.
Those under 18 years old may as a
general matter have diminished culpability relative to adults who commit the same
crimes, Roper, 543 U.S., at 571, 125 S.Ct.
2042
1183, but that does not mean that their

culpability is always insufficient to justify a
life sentence. See generally Thompson,
487 U.S., at 853, 108 S.Ct. 2687 (OConnor,
J., concurring in judgment). It does not
take a moral sense that is fully developed
in every respect to know that beating and
raping an 8yearold girl and leaving her
to die under 197 pounds of rocks is horribly wrong. The single fact of being 17
years old would not afford Cunningham
protection against life without parole if the
young girl had diedas Cunningham surely expected she wouldso why should it
do so when she miraculously survived his
barbaric brutality?
The Court defends its categorical approach on the grounds that a clear line is
necessary to prevent the possibility that
life without parole sentences will be imposed on juvenile nonhomicide offenders
who are not sufficiently culpable to merit
that punishment. Ante, at 2030. It argues that a case-by-case approach to proportionality review is constitutionally insufficient because courts might not be able
with sufficient accuracy [to] distinguish
the few incorrigible juvenile offenders
from the many that have the capacity for
change. Ante, at 2032.
The Court is of course correct that
judges will never have perfect foresight
or perfect wisdomin making sentencing
decisions. But this is true when they sentence adults no less than when they sentence juveniles. It is also true when they
sentence juveniles who commit murder no
less than when they sentence juveniles
who commit other crimes.
Our system depends upon sentencing
judges applying their reasoned judgment
to each case that comes before them. As
we explained in Solem, the whole enterprise of proportionality review is premised
on the justified assumption that courts
are competent to judge the gravity of an
offense, at least on a relative scale. 463

U.S., at 292, 103 S.Ct. 3001. Indeed,
courts traditionally have made these
judgments by applying generally accepted criteria to analyze the harm caused or
threatened to the victim or society, and the
culpability of the offender. Id., at 292,
294, 103 S.Ct. 3001.
*
Terrance Graham committed serious offenses, for which he deserves serious

punishment. But he was only 16 years
old, and under our Courts precedents,
his youth is one factor, among others,
that should be considered in deciding
whether his punishment was unconstitutionally excessive. In my view, Grahams
agetogether with the nature of his
criminal activity and the unusual severity
of his sentencetips the constitutional
balance. I thus concur in the Courts
judgment that Grahams sentence of life
without parole violated the Eighth
Amendment.
I would not, however, reach the same
conclusion in every case involving a juvenile offender. Some crimes are so heinous, and some juvenile offenders so highly culpable, that a sentence of life without
parole may be entirely justified under the
Constitution. As we have said, successful
challenges to noncapital sentences under
the Eighth Amendment have beenand,
in my view, should continue to beexceedingly rare. Rummel, 445 U.S., at
272, 100 S.Ct. 1133. But Grahams sentence presents the exceptional case that
our precedents have recognized will come
along. We should grant Graham the relief
to which he is entitled under the Eighth
Amendment. The Court errs, however, in
using this case as a vehicle for unsettling
our established jurisprudence and fashioning a categorical rule applicable to far
different cases.
2043
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
Justice THOMAS, with whom Justice

SCALIA joins, and with whom Justice
ALITO joins as to Parts I and III,
dissenting.
The Court holds today that it is grossly
disproportionate and hence unconstitutional for any judge or jury to impose a
sentence of life without parole on an offender less than 18 years old, unless he
has committed a homicide. Although the
text of the Constitution is silent regarding
the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the
founding, the Court insists that the standards of American society have evolved
such that the Constitution now requires its
prohibition.
The news of this evolution will, I think,
come as a surprise to the American people.
Congress, the District of Columbia, and 37
States allow judges and juries to consider
this sentencing practice in juvenile nonhomicide cases, and those judges and juries
have decided to use it in the very worst
cases they have encountered.
The Court does not conclude that life
without parole itself is a cruel and unusual
punishment. It instead rejects the judgments of those legislatures, judges, and
juries regarding what the Court describes
as the moral question of whether this
sentence can ever be proportionat[e]
when applied to the category of offenders
at issue here. Ante, at 2021 (internal quotation marks omitted), ante, at 2036 (STEVENS, J., concurring).
I am unwilling to assume that we, as
members of this Court, are any more capable of making such moral judgments than
our fellow citizens. Nothing in our training as judges qualifies us for that task, and
nothing in Article III gives us that authority.
I
The Court recounts the facts of Terrance Jamar Grahams case in detail, so
only a summary is necessary here. At age
16 years and 6 months, Graham and two
masked accomplices committed a burglary
at a small Florida restaurant, during which
one of Grahams accomplices twice struck
the restaurant manager on the head with a
steel pipe when he refused to turn over
money to the intruders. Graham was arrested and charged as an adult. He later
pleaded guilty to two offenses, including
armed burglary with assault or battery, an
offense punishable by life imprisonment
under
Florida
law.
Fla.
Stat.
810.02(2)(a), 810.02(2)(b) (2007). The
trial court withheld adjudication on both
counts, however, and sentenced Graham to
probation, the first 12 months of which he
spent in a county detention facility.
Graham reoffended just six months after
his release. At a probation revocation
hearing, a judge found by a preponderance
of the evidence that, at age 17 years and
11 months, Graham invaded a home with
two accomplices and held the homeowner
at gunpoint for approximately 30 minutes
while his accomplices ransacked the residence. As a result, the judge concluded
that Graham had violated his probation
and, after additional hearings, adjudicated
Graham guilty on both counts arising from
the restaurant robbery. The judge imposed the maximum sentence allowed by
Florida law on the armed burglary count,
life imprisonment without the possibility of
parole.
Graham argues, and the Court holds,
that this sentence violates the Eighth
Amendments Cruel and Unusual Punishments Clause because a life-without-parole
sentence is always grossly disproportionate when imposed on a person under 18
who commits any crime short of a homi-
2044
cide. Brief for Petitioner 24; ante, at

2028 2029.
The Eighth Amendment, which applies

to the States through the Fourteenth, provides that [e]xcessive bail shall not be
required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
It is by now well established that the
Cruel and Unusual Punishments Clause
was originally understood as prohibiting
torturous methods of punishment,
Harmelin v. Michigan, 501 U.S. 957, 979,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
(opinion of SCALIA, J.) (quoting Granucci,
Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Cal.
L.Rev. 839, 842 (1969))specifically methods akin to those that had been considered
cruel and unusual at the time the Bill of
Rights was adopted, Baze v. Rees, 553 U.S.
35, 99, 128 S.Ct. 1520, 170 L.Ed.2d 420
(2008) (THOMAS, J., concurring in judgment). With one arguable exception, see
Weems v. United States, 217 U.S. 349, 30
S.Ct. 544, 54 L.Ed. 793 (1910); Harmelin,
supra, at 990994, 111 S.Ct. 2680 (opinion
of SCALIA, J.) (discussing the scope and
relevance of Weems holding), this Court
applied the Clause with that understanding for nearly 170 years after the Eighth
Amendments ratification.
More recently, however, the Court has

held that the Clause authorizes it to proscribe not only methods of punishment
that qualify as cruel and unusual, but
also any punishment that the Court deems
grossly disproportionate to the crime
committed. Ante, at 2022 (internal quotation marks omitted). This latter interpretation is entirely the Courts creation. As
has been described elsewhere at length,
there is virtually no indication that the
Cruel and Unusual Punishments Clause
originally was understood to require proportionality in sentencing. See Harmelin,
501 U.S., at 975985, 111 S.Ct. 2680 (opinion of SCALIA, J.). Here, it suffices to
recall just two points. First, the Clause
does not expressly refer to proportionality
or invoke any synonym for that term, even
though the Framers were familiar with the
concept, as evidenced by several foundingera state constitutions that required (albeit
without defining) proportional punishments. See id., at 977978, 111 S.Ct. 2680.
In addition, the penal statute adopted by
the First Congress demonstrates that proportionality in sentencing was not considered a constitutional command.1 See id.,
at 980981, 111 S.Ct. 2680 (noting that the
statute prescribed capital punishment for
offenses ranging from run[ning] away
with TTT goods or merchandise to the value of fifty dollars, to murder on the
high seas (quoting 1 Stat. 114)); see also
THE CHIEF JUSTICEs concurrence suggests that it is unnecessary to remark on the

underlying question whether the Eighth
Amendment requires proportionality in sentencing because [n]either party here asks us
to reexamine our precedents requiring proportionality between noncapital offenses and
their corresponding punishments. Ante, at
2037 (opinion concurring in judgment). I
disagree. Both the Court and the concurrence do more than apply existing noncapital
proportionality precedents to the particulars
of Grahams claim. The Court radically departs from the framework those precedents
establish by applying to a noncapital sentence

the categorical proportionality review its prior decisions have reserved for death penalty
cases alone. See Part III, infra. The concurrence, meanwhile, breathes new life into the
case-by-case proportionality approach that
previously governed noncapital cases, from
which the Court has steadily, and wisely, retreated since Solem v. Helm, 463 U.S. 277,
103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). See
Part IV, infra. In dissenting from both
choices to expand proportionality review, I
find it essential to reexamine the foundations
on which that doctrine is built.
II
A
1.
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
Preyer, Penal Measures in the American

Colonies: An Overview, 26 Am. J. Legal
Hist. 326, 348349, 353 (1982) (explaining
that crimes in the late 18th-century colonies generally were punished either by
fines, whipping, or public shaming, or by
death, as intermediate sentencing options
such as incarceration were not common).
The Court has nonetheless invoked proportionality to declare that capital punishmentthough not unconstitutional per
seis categorically too harsh a penalty to
apply to certain types of crimes and certain classes of offenders. See Coker v.
Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53
L.Ed.2d 982 (1977) (plurality opinion)
(rape of an adult woman); Kennedy v.
Louisiana, 554 U.S. , 128 S.Ct. 2641,
171 L.Ed.2d 525 (2008) (rape of a child);
Enmund v. Florida, 458 U.S. 782, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (felony
murder in which the defendant participated in the felony but did not kill or intend
to kill); Thompson v. Oklahoma, 487 U.S.
815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988)
(plurality opinion) (juveniles under 16);
Roper v. Simmons, 543 U.S. 551, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005) (juveniles under
18); Atkins v. Virginia, 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335 (2002) (mentally retarded offenders). In adopting
these categorical proportionality rules, the
Court intrudes upon areas that the Constitution reserves to other (state and federal)
organs of government.
The Eighth
Amendment prohibits the government
from inflicting a cruel and unusual method
of punishment upon a defendant. Other
constitutional provisions ensure the defendants right to fair process before any
punishment is imposed. But, as members
of todays majority note, [s]ociety
changes, ante, at 2037 (STEVENS, J.,
concurring), and the Eighth Amendment
leaves the unavoidably moral question of
who deserves a particular nonprohibited
method of punishment to the judgment of
2045
the legislatures that authorize the penalty,

the prosecutors who seek it, and the
judges and juries that impose it under
circumstances they deem appropriate.
The Court has nonetheless adopted categorical rules that shield entire classes of
offenses and offenders from the death penalty on the theory that evolving standards
of decency require this result. Ante, at
2021 (internal quotation marks omitted).
The Court has offered assurances that
these standards can be reliably measured
by objective indicia of national consensus, such as state and federal legislation, jury behavior, and (surprisingly, given that we are talking about national
consensus) international opinion. Ante, at
2022 (quoting Roper, supra, at 572, 125
S.Ct. 1183); see also ante, at 2021 2025,
2033 2034. Yet even assuming that is
true, the Framers did not provide for the
constitutionality of a particular type of
punishment to turn on a snapshot of
American public opinion taken at the moment a case is decided. Roper, supra, at
572, 125 S.Ct. 1183 (SCALIA, J., dissenting). By holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus
calling a constitutional halt to what may
well be a pendulum swing in social attitudes, Thompson, supra, at 869, 108 S.Ct.
2687 (SCALIA, J., dissenting), and
stunt[ing] legislative consideration of
new questions of penal policy as they
emerge, Kennedy, supra, at , 128
S.Ct., at 266566 (ALITO, J., dissenting).
But the Court is not content to rely on
snapshots of community consensus in any
event. Ante, at 2026 (Community consensus, while entitled to great weight, is not
itself determinative) (quoting Kennedy,
supra, at , 128 S.Ct., at 2658). Instead, it reserves the right to reject the
evidence of consensus it finds whenever its
own independent judgment points in a
2046
different direction. Ante, at 2026. The

Court thus openly claims the power not
only to approve or disapprove of democratic choices in penal policy based on evidence
of how societys standards have evolved,
but also on the basis of the Courts independent perception of how those standards should evolve, which depends on
what the Court concedes is necessarily
TTT a moral judgment regarding the
propriety of a given punishment in todays
society. Ante, at 2021 (quoting Kennedy,
supra, at , 128 S.Ct., at 2645).
The categorical proportionality review
the Court employs in capital cases thus
lacks a principled foundation. The Courts
decision today is significant because it does
not merely apply this standardit remarkably expands its reach. For the first
time in its history, the Court declares an
entire class of offenders immune from a
noncapital sentence using the categorical
approach it previously reserved for death
penalty cases alone.
B
Until today, the Court has based its
categorical proportionality rulings on the
notion that the Constitution gives special
protection to capital defendants because
the death penalty is a uniquely severe
punishment that must be reserved for only
those who are most deserving of execution. Atkins, supra, at 319, 122 S.Ct.
2242; see Roper, supra, at 572, 125 S.Ct.
1183; Eddings v. Oklahoma, 455 U.S. 104,
102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett
v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978). Of course, the Eighth
Amendment itself makes no distinction between capital and noncapital sentencing,
but the bright line the Court drew
between the two penalties has for many
years served as the principal justification
for the Courts willingness to reject democratic choices regarding the death penalty.
See Rummel v. Estelle, 445 U.S. 263, 275,

100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
Todays decision eviscerates that distinction. Death is different no longer. The
Court now claims not only the power categorically to reserve the most severe punishment for those the Court thinks are
the most deserving of execution, Roper, 543 U.S., at 568, 125 S.Ct. 1183 (quoting Atkins, 536 U.S., at 319, 122 S.Ct.
2242), but also to declare that less culpable persons are categorically exempt from
the second most severe penalty. Ante,
at 2028 (emphasis added). No reliable
limiting principle remains to prevent the
Court from immunizing any class of offenders from the laws third, fourth, fifth,
or fiftieth most severe penalties as well.
The Courts departure from the death
is different distinction is especially mystifying when one considers how long it has
resisted crossing that divide. Indeed, for
a time the Court declined to apply proportionality principles to noncapital sentences
at all, emphasizing that a sentence of
death differs in kind from any sentence of
imprisonment, no matter how long.
Rummel, 445 U.S., at 272, 100 S.Ct. 1133
(emphasis added). Based on that rationale, the Court found that the excessiveness of one prison term as compared to
another was properly within the province
of legislatures, not courts, id., at 275276,
100 S.Ct. 1133, precisely because it involved an invariably TTT subjective determination, there being no clear way to
make any constitutional distinction between one term of years and a shorter or
longer term of years, Hutto v. Davis,
454 U.S. 370, 373, 102 S.Ct. 703, 70
L.Ed.2d 556 (1982) (per curiam) (quoting
Rummel, supra, at 275, 100 S.Ct. 1133;
emphasis added).
Even when the Court broke from that
understanding in its 5to4 decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,
2047
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
77 L.Ed.2d 637 (1983) (striking down as

grossly disproportionate a life-withoutparole sentence imposed on a defendant
for passing a worthless check), the Court
did so only as applied to the facts of that
case; it announced no categorical rule.
Id., at 288, 303, 103 S.Ct. 3001. Moreover,
the Court soon cabined Solem s rationale.
The controlling opinion in the Courts very
next noncapital proportionality case emphasized that principles of federalism require substantial deference to legislative
choices regarding the proper length of
prison sentences. Harmelin, 501 U.S., at
999, 111 S.Ct. 2680 (opinion of KENNEDY, J.) ([M]arked divergences both in
underlying theories of sentencing and in
the length of prescribed prison terms are
the inevitable, often beneficial, result of
the federal structure); id., at 1000, 111
S.Ct. 2680 ([D]iffering attitudes and perceptions of local conditions may yield different, yet rational, conclusions regarding
the appropriate length of prison terms for
particular crimes). That opinion thus
concluded that successful challenges to
the proportionality of [prison] sentences
[would be] exceedingly rare. Id., at 1001,
111 S.Ct. 2680 (internal quotation marks
omitted).
Harmelin, supra, largely on the theory

that criticisms of the wisdom, cost-efficiency, and effectiveness of term-of-years
prison sentences are appropriately directed at the legislature[s], not the courts,
Ewing, supra, at 27, 28, 123 S.Ct. 1179
(plurality opinion). The Court correctly
notes that those decisions were closely
divided, ante, at 2022, but so was Solem
itself, and it is now fair to describe Solem
as an outlier.2
Remarkably, the Court today does more
than return to Solem s case-by-case proportionality standard for noncapital sentences; it hurtles past it to impose a categorical proportionality rule banning lifewithout-parole sentences not just in this
case, but in every case involving a juvenile
nonhomicide offender, no matter what the
circumstances.
Neither the Eighth
Amendment nor the Courts precedents
justify this decision.
III
They have been rare indeed. In the 28

years since Solem, the Court has considered just three such challenges and has
rejected them all, see Ewing v. California,
538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d
108 (2003); Lockyer v. Andrade, 538 U.S.
63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003);
The Court asserts that categorical proportionality review is necessary here merely because Graham asks for a categorical
rule, see ante, at 2022 2023, and because
the Court thinks clear lines are a good
idea, see ante, at 2030 2031. I find those
factors wholly insufficient to justify the
Courts break from past practice. First,
the Court fails to acknowledge that a petitioner seeking to exempt an entire category of offenders from a sentencing practice
carries a much heavier burden than one
Courts and commentators interpreting this

Courts decisions have reached this conclusion. See, e.g., United States v. Polk, 546 F.3d
74, 76 (C.A.1 2008) ([I]nstances of gross
disproportionality [in noncapital cases] will
be hens-teeth rare); Barkow, The Court of
Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich. L.Rev. 1145, 1160 (2009)
(Solem now stands as an outlier); Note,
The Capital Punishment Exception: A Case
for Constitutionalizing the Substantive Criminal Law, 104 Colum. L.Rev. 426, 445 (2004)
(observing that outside of the capital context,
proportionality review has been virtually
dormant); Steiker & Steiker, Opening a
Window or Building a Wall? The Effect of
Eighth Amendment Death Penalty Law and
Advocacy on Criminal Justice More Broadly,
11 U. Pa. J. Const. L. 155, 184 (2009)
(Eighth Amendment challenges to excessive
incarceration [are] essentially non-starters).
2.
2048
seeking case-specific relief under Solem.

Unlike the petitioner in Solem, Graham
must establish not only that his own lifewithout-parole sentence is grossly disproportionate, but also that such a sentence
is always grossly disproportionate whenever it is applied to a juvenile nonhomicide
offender, no matter how heinous his crime.
Cf. United States v. Salerno, 481 U.S. 739,
107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
Second, even applying the Courts categorical evolving standards test, neither objective evidence of national consensus nor
the notions of culpability on which the
Courts independent judgment relies can
justify the categorical rule it declares here.
A
According to the Court, proper Eighth
Amendment analysis begins with objective indicia of national consensus, 3 and
[t]he clearest and most reliable objective
evidence of contemporary values is the
3.
4.
The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders
to adult penalties was one of the modes or
acts of punishment that had been considered
cruel and unusual at the time that the Bill of
Rights was adopted. Ford v. Wainwright,
477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d
335 (1986). As the Court has noted in the
past, however, the evidence is clear that, at
the time of the Founding, the common law
set a rebuttable presumption of incapacity to
commit any felony at the age of 14, and
theoretically permitted [even] capital punishment to be imposed on a person as young as
age 7. Stanford v. Kentucky, 492 U.S. 361,
368, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989)
(citing 4 W. Blackstone, Commentaries *23
*24; 1 M. Hale, Pleas of the Crown 2429
(1800)). It thus seems exceedingly unlikely
that the imposition of a life-without-parole
sentence on a person of Grahams age would
run afoul of those standards.
Although the details of state laws vary extensively, they generally permit the transfer of
a juvenile offender to adult court through one
or more of the following mechanisms: (1)
judicial waiver, in which the juvenile court
has the authority to waive jurisdiction over
the offender and transfer the case to adult
legislation enacted by the countrys legislatures, ante, at 2023 (internal quotation

marks omitted). As such, the analysis
should end quickly, because a national
consensus in favor of the Courts result
simply does not exist. The laws of all 50
States, the Federal Government, and the
District of Columbia provide that juveniles
over a certain age may be tried in adult
court if charged with certain crimes.4 See
ante, at 2034 2036 (Appendix to opinion
of the Court). Forty-five States, the Federal Government, and the District of Columbia expose juvenile offenders charged
in adult court to the very same range of
punishments faced by adults charged with
the same crimes. See ante, at 2034 2035,
Part I. Eight of those States do not make
life-without-parole sentences available for
any nonhomicide offender, regardless of
age.5 All remaining jurisdictionsthe
Federal Government, the other 37 States,
court; (2) concurrent jurisdiction, in which
adult and juvenile courts share jurisdiction
over certain cases and the prosecutor has
discretion to file in either court; or (3) statutory provisions that exclude juveniles who
commit certain crimes from juvenile-court jurisdiction. See Dept. of Justice, Juvenile Offenders and Victims: 1999 National Report
89, 104 (1999) (hereinafter 1999 DOJ National Report); Feld, Unmitigated Punishment:
Adolescent Criminal Responsibility and
LWOP Sentences, 10 J. Law & Family Studies
11, 3839 (2007).
5.
Alaska entitles all offenders to parole, regardless of their crime.

Alaska Stat.
12.55.015(g) (2008).
The other seven
States provide parole eligibility to all offenders, except those who commit certain homicide crimes. Conn. Gen.Stat. 53a35a
(2009);
Haw.Rev.Stat. 706656(1)(2)
(1993 and 2008 Supp. Pamphlet); Me.Rev.
Stat. Ann., Tit. 17a, 1251 (2006); Mass.
Gen. Laws Ann., ch. 265, 2 (West 2008);
N.J. Stat. Ann. 2C:113(b)(2)(3) (West
2005); N.M. Stat. Ann. 311814 (Supp.
2009); Vt. Stat. Ann., Tit. 13, 2303 (2009).
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
and the Districtauthorize life-without-parole sentences for certain nonhomicide offenses, and authorize the imposition of
such sentences on persons under 18. See
ibid. Only five States prohibit juvenile
offenders from receiving a life-without-parole sentence that could be imposed on an
adult convicted of the same crime.6
No plausible claim of a consensus
against this sentencing practice can be
made in light of this overwhelming legislative evidence. The sole fact that federal
law authorizes this practice singlehandedly
refutes the claim that our Nation finds it
morally repugnant. The additional reality
that 37 out of 50 States (a supermajority of
74%) permit the practice makes the claim
utterly implausible. Not only is there no
consensus against this penalty, there is a
clear legislative consensus in favor of its
availability.
Undaunted, however, the Court brushes
this evidence aside as incomplete and
unavailing, declaring that [t]here are
6.
Colo.Rev.Stat.
Ann.
181.3401(4)(b)
(2009) (authorizing mandatory life sentence
with possibility for parole after 40 years for
juveniles convicted of class 1 felonies); Kan.
Stat. Ann. 214622, 4643 (2007); Ky.Rev.
Stat. Ann. 640.040 (West 2006); Shepherd
v. Commonwealth, 251 S.W.3d 309, 320321
(Ky.2008); Mont.Code Ann. 4618222(1)
(2009); Tex. Penal Code Ann. 12.31 (West
Supp.2009).
7.
Although the Court previously has dismissed

the relevance of the Uniform Code of Military
Justice to its discernment of consensus, see
Kennedy v. Louisiana, 554 U.S. , ,
128 S.Ct. 2641, , 171 L.Ed.2d 525 (2008)
(statement of KENNEDY, J., respecting denial
of rehearing), juveniles who enlist in the military are nonetheless eligible for life-withoutparole sentences if they commit certain nonhomicide crimes. See 10 U.S.C. 505(a)
(permitting enlistment at age 17), 856a, 920
(2006 ed., Supp. II).
8.
Kennedy, 554 U.S., at , , 128 S.Ct.,

at 265152, 265758 (prohibiting capital punishment for the rape of a child where only six
States had enacted statutes authorizing the
punishment since Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972) (per curiam) ); Roper v. Simmons, 543
U.S. 551, 564, 568, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005) (prohibiting capital punish-
2049
measures of consensus other than legislation. Ante, at 2023 (quoting Kennedy,

554 U.S., at , 128 S.Ct., at 2657). This
is nothing short of stunning. Most importantly, federal civilian law approves this
sentencing practice.7 And although the
Court has never decided how many state
laws are necessary to show consensus, the
Court has never banished into constitutional exile a sentencing practice that the laws
of a majority, let alone a supermajority, of
States expressly permit.8
Moreover, the consistency and direction
of recent legislationa factor the Court
previously has relied upon when crafting
categorical proportionality rules, see Atkins, 536 U.S., at 315316, 122 S.Ct. 2242;
Roper, 543 U.S., at 565566, 125 S.Ct.
1183underscores the consensus against
the rule the Court announces here. In my
view, the Court cannot point to a national
consensus in favor of its rule without assuming a consensus in favor of the two
penological points it later discusses: (1)
Juveniles are always less culpable than
ment for offenders younger than 18 where 18
of 38 death-penalty States precluded imposition of the penalty on persons under 18 and
the remaining 12 States did not permit capital
punishment at all); Atkins v. Virginia, 536
U.S. 304, 314315, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002) (prohibiting capital punishment of mentally retarded persons where
18 of 38 death-penalty States precluded imposition of the penalty on such persons and the
remaining States did not authorize capital
punishment at all); Thompson v. Oklahoma,
487 U.S. 815, 826, 829, 108 S.Ct. 2687, 101
L.Ed.2d 702 (1988) (plurality opinion) (prohibiting capital punishment of offenders under 16 where 18 of 36 death-penalty States
precluded imposition of the penalty on such
persons and the remaining States did not
permit capital punishment at all); Enmund v.
Florida, 458 U.S. 782, 789, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982) (prohibiting capital punishment for felony murder without proof of
intent to kill where eight States allowed the
punishment without proof of that element);
Coker v. Georgia, 433 U.S. 584, 593, 97 S.Ct.
2861, 53 L.Ed.2d 982 (1977) (holding capital
punishment for the rape of a woman unconstitutional where [a]t no time in the last 50
years have a majority of the States authorized
death as a punishment for rape).
2050
similarly-situated adults, and (2) juveniles

who commit nonhomicide crimes should always receive an opportunity to demonstrate rehabilitation through parole. Ante,
at 2026, 2029 2030.
But legislative
trends make that assumption untenable.
First, States over the past 20 years have
consistently increased the severity of punishments for juvenile offenders. See 1999
DOJ National Report 89 (referring to the
1990s as a time of unprecedented change
as State legislatures crack[ed] down on
juvenile crime); ibid. (noting that, during
that period, legislatures in 47 States and
the District of Columbia enacted laws that
made their juvenile justice systems more
punitive, principally by ma[king] it easier
to transfer juvenile offenders from the juvenile justice system to the [adult] criminal
justice system); id., at 104. This, in my
view, reveals the States widespread agreement that juveniles can sometimes act with
the same culpability as adults and that the
law should permit judges and juries to
consider adult sentencesincluding life
without parolein those rare and unfortunate cases. See Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J. Law &
Family Studies 11, 6970 (2007) (noting
that life-without-parole sentences for juveniles have increased since the 1980s); Amnesty International & Human Rights
9.
I say recent memory because the research

relied upon by the Court provides a headcount of juvenile nonhomicide offenders presently incarcerated in this country, but does
not provide more specific information about
all of the offenders, such as the dates on
which they were convicted.
When issued, the Courts opinion relied on
a letter the Court had requested from the
Bureau of Prisons (BOP), which stated that
10.
Watch, The Rest of Their Lives: Life

Without Parole for Child Offenders in the
United States 2, 31 (2005) (same).
Second, legislatures have moved away
from parole over the same period. Congress abolished parole for federal offenders in 1984 amid criticism that it was subject to gamesmanship and cynicism,
Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sentencing Rep. 180 (1999)
(discussing the Sentencing Reform Act of
1984, 98 Stat. 1987), and several States
have followed suit, see T. Hughes, D. Wilson, & A. Beck, Dept. of Justice, Bureau of
Justice Statistics, Trends in State Parole,
19902000, p. 1 (2001) (noting that, by the
end of 2000, 16 States had abolished parole
for all offenses, while another 4 States had
abolished it for certain ones). In light of
these developments, the argument that
there is nationwide consensus that parole
must be available to offenders less than 18
years old in every nonhomicide case simply
fails.
B
The Court nonetheless dismisses existing legislation, pointing out that life-without-parole sentences are rarely imposed on
juvenile nonhomicide offenders123 times
in recent memory 9 by the Courts calculation, spread out across 11 States.10 Ante,
there were six juvenile nonhomicide offenders
then serving life-without-parole sentences in
the federal system. After the Court released
its opinion, the Acting Solicitor General disputed the BOPs calculations and stated that
none of those six offenders was serving a life
without parole sentence solely for a juvenile
nonhomicide crime completed before the age
of 18. See Letter from Neal Kumar Katyal,
Acting Solicitor General, U.S. Dept. of Justice, to Clerk of the Supreme Court (May 24,
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
at 2023 2024. Based on this rarity of

use, the Court proclaims a consensus
against the practice, implying that laws
allowing it either reflect the consensus of a
prior, less civilized time or are the work of
legislatures tone-deaf to moral values of
their constituents that this Court claims to
have easily discerned from afar. See ante,
at 2023.
This logic strains credulity. It has been
rejected before. Gregg v. Georgia, 428
U.S. 153, 182, 96 S.Ct. 2909, 49 L.Ed.2d
859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) ([T]he relative
infrequency of jury verdicts imposing the
death sentence does not indicate rejection
of capital punishment per se. Rather, [it]
TTT may well reflect the humane feeling
that this most irrevocable of sanctions
should be reserved for a small number of
extreme cases). It should also be rejected here. That a punishment is rarely
imposed demonstrates nothing more than
a general consensus that it should be just
thatrarely imposed. It is not proof that
the punishment is one the Nation abhors.
The Court nonetheless insists that the
26 States that authorize this penalty, but
are not presently incarcerating a juvenile
nonhomicide offender on a life-without-parole sentence, cannot be counted as approving its use. The mere fact that the
laws of a jurisdiction permit this penalty,
the Court explains, does not indicate that
the penalty has been endorsed through
deliberate, express, and full legislative consideration. Ante, at 2026.
But this misapplies the Courts own
evolving standards test. Under that test,
2010) (available in Clerk of Courts case file)
(noting that five of the six inmates were convicted for participation in unlawful conspiracies
that began when they were juveniles but continued after they reached the age of 18, and noting
that the sixth inmate was convicted of murder
as a predicate offense under the Racketeer Influenced and Corrupt Organizations Act). The
2051
[i]t is not the burden of [a State] to

establish a national consensus approving
what their citizens have voted to do; rather, it is the heavy burden of petitioners to
establish a national consensus against it.
Stanford v. Kentucky, 492 U.S. 361, 373,
109 S.Ct. 2969, 106 L.Ed.2d 306 (1989)
(quoting Gregg, supra, at 175, 96 S.Ct.
2909 (joint opinion of Stewart, Powell, and
STEVENS, JJ.); some emphasis added).
In light of this fact, the Court is wrong to
equate a jurisdictions disuse of a legislatively authorized penalty with its moral
opposition to it. The fact that the laws of
a jurisdiction permit this sentencing practice demonstrates, at a minimum, that the
citizens of that jurisdiction find tolerable
the possibility that a jury of their peers
could impose a life-without-parole sentence
on a juvenile whose nonhomicide crime is
sufficiently depraved.
The recent case of 16yearold Keighton
Budder illustrates this point. Just weeks
before the release of this opinion, an Oklahoma jury sentenced Budder to life without parole after hearing evidence that he
viciously attacked a 17yearold girl who
gave him a ride home from a party. See
Stogsdill, Teen Gets Life Terms in Stabbing, Rape Case, Tulsa World, Apr. 2,
2010, p. A10; Stogsdill, Delaware County
Teen Sentenced in Rape, Assault Case,
Tulsa World, May 4, 2010, p. A12. Budder
allegedly put the girls head into a headlock and sliced her throat, raped her,
stabbed her about 20 times, beat her, and
pounded her face into the rocks alongside
a dirt road. Teen Gets Life Terms in
Stabbing, Rape Case, at A10. Miraculously, the victim survived. Ibid.
Court has amended its opinion in light of the
Acting Solicitor Generals letter. In my view,
the inconsistency between the BOPs classification of these six offenders and the Solicitor
Generals is irrelevant. The fact remains that
federal law, and the laws of a supermajority of
States, permit this sentencing practice. And, as
2052
Budders crime was rare in its brutality.

The sentence the jury imposed was also
rare. According to the study relied upon
by this Court, Oklahoma had no such offender in its prison system before Budders offense. P. Annino, D. Rasmussen,
& C. Rice, Juvenile Life Without Parole
for NonHomicide Offenses: Florida Compared to Nation 2, 14 (Sept. 14, 2009)
(Table A). Without his conviction, therefore, the Court would have counted Oklahomas citizens as morally opposed to lifewithout-parole sentences for juveniles nonhomicide offenders.
Yet Oklahomas experience proves the
inescapable flaw in that reasoning: Oklahoma citizens have enacted laws that allow
Oklahoma juries to consider life-withoutparole sentences in juvenile nonhomicide
cases. Oklahoma juries invoke those laws
rarelyin the unusual cases that they find
exceptionally depraved. I cannot agree
with the Court that Oklahoma citizens
should be constitutionally disabled from
using this sentencing practice merely because they have not done so more frewill be explained, see infra this page and 20252028, judges and jurors have chosen to impose
this sentence in the very worst cases they have
encountered.
Because existing legislation plainly suffices
to refute any consensus against this sentencing practice, I assume the accuracy of the
Courts evidence regarding the frequency with
which this sentence has been imposed. But I
would be remiss if I did not mention two
points about the Courts figures. First, it
seems odd that the Court counts only those
juveniles sentenced to life without parole and
excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences
(e.g., 70 or 80 years imprisonment). It is
difficult to argue that a judge or jury imposing such a long sentencewhich effectively
denies the offender any material opportunity
for parolewould express moral outrage at a
life-without-parole sentence.
Second, if objective indicia of consensus
were truly important to the Courts analysis,
the statistical information presently available
would be woefully inadequate to form the
basis of an Eighth Amendment rule that can
be revoked only by constitutional amendment.
The only evidence submitted to this Court
regarding the frequency of this sentences im-
11.
quently. If anything, the rarity of this

penaltys use underscores just how judicious sentencing judges and juries across
the country have been in invoking it.
This fact is entirely consistent with the
Courts intuition that juveniles generally
are less culpable and more capable of
growth than adults. See infra, at 2028
2029. Grahams own case provides another example. Graham was statutorily eligible for a life-without-parole sentence after
his first crime. But the record indicates
that the trial court did not give such a
sentence serious consideration at Grahams
initial plea hearing. It was only after Graham subsequently violated his parole by
invading a home at gunpoint that the maximum sentence was imposed.
In sum, the Courts calculation that 123
juvenile nonhomicide life-without-parole
sentences have been imposed nationwide in
recent memory, even if accepted, hardly
amounts to strong evidence that the sentencing practice offends our common sense
of decency.11
position was a single study completed after
this Court granted certiorari in this case. See
P. Annino, D. Rasmussen, & C. Rice, Juvenile
Life Without Parole for NonHomicide Offenses: Florida Compared to Nation 2 (Sept.
14, 2009). Although I have no reason to
question the professionalism with which this
study was conducted, the study itself acknowledges that it was incomplete and the first of
its kind. See id., at 1. The Courts questionable decision to complete the study on its
own does not materially increase its reliability. For one thing, by finishing the study
itself, the Court prohibits the parties from
ever disputing its findings. Complicating
matters further, the original study sometimes
relied on third-party data rather than data
from the States themselves, see ibid.; the
study has never been peer reviewed; and
specific data on all 123 offenders (age, date of
conviction, crime of conviction, etc.), have
not been collected, making verification of the
Courts headcount impossible. The Court inexplicably blames Florida for all of this. See
ante, at 2023 2024. But as already noted, it
is not Floridas burden to collect data to
prove a national consensus in favor of this
sentencing practice, but Grahams heavy
burden to prove a consensus against it. See
supra, at 2051.
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
Finally, I cannot help but note that the

statistics the Court finds inadequate to
justify the penalty in this case are stronger than those supporting at least one other
penalty this Court has upheld. Not long
ago, this Court, joined by the author of
todays opinion, upheld the application of
the death penalty against a 16yearold,
despite the fact that no such punishment
had been carried out on a person of that
age in this country in nearly 30 years.
See Stanford, 492 U.S., at 374, 109 S.Ct.
2969. Whatever the statistical frequency
with which life-without-parole sentences
have been imposed on juvenile nonhomicide offenders in the last 30 years, it is
surely greater than zero.
2053
serv[e] legitimate penological goals.

Ante, at 2026. The Court begins that
analysis with the obligatory preamble that
[t]he Eighth Amendment does not mandate adoption of any one penological theory, ante, at 2028 (quoting Harmelin, 501
U.S., at 999, 111 S.Ct. 2680 (opinion of
KENNEDY, J.)), then promptly mandates
the adoption of the theories the Court
deems best.
Lacking any plausible claim to consensus, the Court shifts to the heart of its
argument: its independent judgment
that this sentencing practice does not
First, the Court acknowledges that, at a

minimum, the imposition of life-withoutparole sentences on juvenile nonhomicide
offenders serves two legitimate penological goals: incapacitation and deterrence.
Ante, at 2028 2029. By definition, such
sentences serve the goal of incapacitation
by ensuring that juvenile offenders who
commit armed burglaries, or those who
commit the types of grievous sex crimes
described by THE CHIEF JUSTICE, no
longer threaten their communities. See
ante, at 2041 (opinion concurring in judgment). That should settle the matter,
since the Court acknowledges that incapacitation is an important penological goal.
Ante, at 2029. Yet, the Court finds this
goal inadequate to justify the life-without-parole sentences here. Ante, at 2029
(emphasis added). A similar fate befalls
deterrence. The Court acknowledges that
such sentences will deter future juvenile
I confine to a footnote the Courts discussion of foreign laws and sentencing practices
because past opinions explain at length why
such factors are irrelevant to the meaning of
our Constitution or the Courts discernment
of any longstanding tradition in this Nation.
See Atkins, 536 U.S., at 324325, 122 S.Ct.
2242 (Rehnquist, C.J., dissenting). Here, two
points suffice. First, despite the Courts attempt to count the actual number of juvenile
nonhomicide offenders serving life-withoutparole sentences in other nations (a task even
more challenging than counting them within
our borders), the laws of other countries permit juvenile life-without-parole sentences, see
Child Rights Information, Network, C. de la
Vega, M. Montesano, & A. Solter, Human

Rights Advocates, Statement on Juvenile Sentencing to Human Rights Council, 10th Sess.
(Nov. 3, 2009) (Eleven countries have laws
with the potential to permit the sentencing of
child offenders to life without the possibility
of release, online at http://www.crin.org/
resources/infoDetail.asp?ID=19806) (as visited May 14, 2010, and available in Clerk of
Courts case file)). Second, present legislation notwithstanding, democracies around the
world remain free to adopt life-without-parole
sentences for juvenile offenders tomorrow if
they see fit. Starting today, ours can count
itself among the few in which judicial decree
prevents voters from making that choice.
In the end, however, objective factors

such as legislation and the frequency of a
penaltys use are merely ornaments in the
Courts analysis, window dressing that accompanies its judicial fiat.12 By the
Courts own decree, [c]ommunity consensus TTT is not itself determinative. Ante,
at 2026. Only the independent moral
judgment of this Court is sufficient to decide the question. See ibid.
C
12.
2054
offenders, at least to some degree, but

rejects that penological goal, not as illegitimate, but as insufficient. Ante, at 2029
([A]ny limited deterrent effect provided
by life without parole is not enough to
justify the sentence. (emphasis added)).
The Court looks more favorably on rehabilitation, but laments that life-without-parole sentences do little to promote this
goal because they result in the offenders
permanent incarceration. Ante, at 2029
2030. Of course, the Court recognizes that
rehabilitations utility and proper implementation are subject to debate. Ante, at
2030. But that does not stop it from declaring that a legislature may not forswea[r] TTT the rehabilitative ideal. Ibid.
In other words, the Eighth Amendment
does not mandate any one penological
theory, ante, at 2028 (internal quotation
marks omitted), just one the Court approves.
Ultimately, however, the Courts independent judgment and the proportionality
rule itself center on retributionthe notion that a criminal sentence should be
proportioned to the personal culpability
of the criminal offender. Ante, at 2026,
2028 (quoting Tison v. Arizona, 481 U.S.
137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127
(1987)). The Court finds that retributive
purposes are not served here for two reasons.
1
First, quoting Roper, 543 U.S., at 569
570, 125 S.Ct. 1183, the Court concludes
that juveniles are less culpable than adults
because, as compared to adults, they have
a lack of maturity and an underdeveloped sense of responsibility, and their
characters are not as well formed. Ante,
at 2026. As a general matter, this statement is entirely consistent with the evidence recounted above that judges and
juries impose the sentence at issue quite
infrequently, despite legislative authorization to do so in many more cases. See
Part IIIB, supra. Our society tends to

treat the average juvenile as less culpable
than the average adult. But the question
here does not involve the average juvenile.
The question, instead, is whether the Constitution prohibits judges and juries from
ever concluding that an offender under the
age of 18 has demonstrated sufficient depravity and incorrigibility to warrant his
permanent incarceration.
In holding that the Constitution imposes
such a ban, the Court cites developments
in psychology and brain science indicating
that juvenile minds continue to mature
through late adolescence, ante, at 2026
(citing Brief for American Medical Association et al. as Amici Curiae 1624; Brief
for American Psychological Association et
al. as Amici Curiae 2227 (hereinafter
APA Brief)), and that juveniles are more
likely [than adults] to engage in risky behaviors, id., at 7. But even if such generalizations from social science were relevant
to constitutional rulemaking, the Court
misstates the data on which it relies.
The Court equates the propensity of a
fairly substantial number of youths to engage in risky or antisocial behaviors
with the propensity of a much smaller
group to commit violent crimes. Ante, at
2031. But research relied upon by the
amici cited in the Courts opinion differentiates between adolescents for whom antisocial behavior is a fleeting symptom and
those for whom it is a lifelong pattern.
See Moffitt, AdolescenceLimited and
LifeCoursePersistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychological Rev. 674, 678 (1993) (cited in
APA Brief 8, 17, 20) (distinguishing between adolescents who are antisocial only
during adolescence and a smaller group
who engage in antisocial behavior at every life stage despite drift[ing] through
successive systems aimed at curbing their
deviance). That research further sug-
2055
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
gests that the pattern of behavior in the

latter group often sets in before 18. See
Moffitt, supra, at 684 (The well-documented resistance of antisocial personality
disorder to treatments of all kinds seems
to suggest that the life-course-persistent
style is fixed sometime before age 18).
And, notably, it suggests that violence itself is evidence that an adolescent offenders antisocial behavior is not transient.
See Moffitt, A Review of Research on the
Taxonomy of LifeCourse Persistent Versus AdolescenceLimited Antisocial Behavior, in Taking Stock: the Status of
Criminological Theory 277, 292293 (F.
Cullen, J. Wright, & K. Blevins eds.2006)
(observing that life-course persistent
males tended to specialize in serious offenses (carrying a hidden weapon, assault,
robbery, violating court orders), whereas
adolescence-limited ones specialized in
non-serious offenses (theft less than $5,
public drunkenness, giving false information on application forms, pirating computer software, etc.)).
In sum, even if it were relevant, none of
this psychological or sociological data is
sufficient to support the Courts moral
conclusion that youth defeats culpability in
every case. Ante, at 2026 (quoting Roper,
543 U.S., at 570, 125 S.Ct. 1183); see id.,
at 618, 125 S.Ct. 1183 (SCALIA, J., dissenting); R. Epstein, The Case Against
Adolescence 171 (2007) (reporting on a
study of juvenile reasoning skills and concluding that most teens are capable of
conventional, adult-like moral reasoning).
The Court responds that a categorical
rule is nonetheless necessary to prevent
the unacceptable likelihood that a
judge or jury, unduly swayed by the
brutality or cold-blooded nature of a juveniles nonhomicide crime, will sentence
him to a life-without-parole sentence for
which he possesses insufficient culpability, ante, at 2032 (quoting Roper, supra,
at 572, 125 S.Ct. 1183). I find that justification entirely insufficient. The integrity
of our criminal justice system depends on
the ability of citizens to stand between the
defendant and an outraged public and dispassionately determine his guilt and the
proper amount of punishment based on the
evidence presented. That process necessarily admits of human error. But so does
the process of judging in which we engage.
As between the two, I find far more unacceptable that this Court, swayed by studies reflecting the general tendencies of
youth, decree that the people of this country are not fit to decide for themselves
when the rare case requires different
treatment.
2
That is especially so because, in the end,
the Court does not even believe its pronouncements about the juvenile mind. If
it did, the categorical rule it announces
today would be most peculiar because it
leaves intact state and federal laws that
permit life-without-parole sentences for juveniles who commit homicides. See ante,
at 2029 2030. The Court thus acknowledges that there is nothing inherent in the
psyche of a person less than 18 that prevents him from acquiring the moral agency
necessary to warrant a life-without-parole
sentence. Instead, the Court rejects overwhelming legislative consensus only on the
question of which acts are sufficient to
demonstrate that moral agency.
The Court is quite willing to accept that
a 17yearold who pulls the trigger on a
firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17year
old who rapes an 8yearold and leaves
her for dead does not. See ante, at 2026
2028; cf. ante, at 2041 (ROBERTS, C.J.,
concurring in judgment) (describing the
crime of life-without-parole offender Milagro Cunningham). Thus, the Courts
2056
conclusion that life-without-parole sentences are grossly disproportionate for

juvenile nonhomicide offenders in fact has
very little to do with its view of juveniles,
and much more to do with its perception
that defendants who do not kill, intend to
kill, or foresee that life will be taken are
categorically less deserving of the most
serious forms of punishment than are murderers. Ante, at 2027.
That the Court is willing to impose such
an exacting constraint on democratic sentencing choices based on such an untestable philosophical conclusion is remarkable.
The question of what acts are deserving
of what punishments is bound so tightly
with questions of morality and social conditions as to make it, almost by definition,
a question for legislative resolution. It is
true that the Court previously has relied
on the notion of proportionality in holding
certain classes of offenses categorically exempt from capital punishment. See supra,
at 2044. But never before today has the
Court relied on its own view of just deserts to impose a categorical limit on the
imposition of a lesser punishment. Its
willingness to cross that well-established
boundary raises the question whether any
democratic choice regarding appropriate
punishment is safe from the Courts everexpanding constitutional veto.
IV
Although the concurrence avoids the
problems associated with expanding categorical proportionality review to noncapital
cases, it employs noncapital proportionality
analysis in a way that raises the same
fundamental concern. Although I do not
believe Solem merits stare decisis treatment, Grahams claim cannot prevail even
under that test (as it has been limited by
the Courts subsequent precedents). Solem instructs a court first to compare the
gravity of an offenders conduct to the
harshness of the penalty to determine

whether an inference of gross disproportionality exists. 463 U.S., at 290291, 103
S.Ct. 3001. Only in the rare case in
which such an inference is present should
the court proceed to the objective part of
the inquiryan intra and interjurisdictional comparison of the defendants sentence with others similarly situated.
Harmelin, 501 U.S., at 1000, 1005, 111
S.Ct. 2680 (opinion of KENNEDY, J.).
Under the Courts precedents, I fail to
see how an inference of gross disproportionality arises here. The concurrence
notes several arguably mitigating facts
Grahams lack of prior criminal convictions, his youth and immaturity, and the
difficult circumstances of his upbringing.
Ante, at 2040 (ROBERTS, C.J., concurring
in judgment). But the Court previously
has upheld a life-without-parole sentence
imposed on a first-time offender who committed a nonviolent drug crime. See
Harmelin, supra, at 10021004, 111 S.Ct.
2680. Grahams conviction for an actual
violent felony is surely more severe than
that offense. As for Grahams age, it is
true that Roper held juveniles categorically ineligible for capital punishment, but as
the concurrence explains, Roper was based
on the explicit conclusion that [juveniles]
cannot with reliability be classified among
the worst offenders ; it did not establish
that juveniles can never be eligible for life
without parole. Ante, at 2039 (ROBERTS, C.J., concurring in judgment)
(quoting Roper, 543 U.S., at 569, 125 S.Ct.
1183 (emphasis added in opinion of ROBERTS, C.J.)). In my view, Roper s principles are thus not generally applicable outside the capital sentencing context.
By holding otherwise, the concurrence
relies on the same type of subjective judgment as the Court, only it restrains itself
to a case-by-case rather than a categorical
ruling. The concurrence is quite ready to
GRAHAM v. FLORIDA
Cite as 130 S.Ct. 2011 (2010)
hand Graham the general presumption of

diminished culpability for juveniles, ante,
at 2040, apparently because it believes that
Grahams armed burglary and home invasion crimes were certainly less serious
than murder or rape, ibid. It recoils only
from the prospect that the Court would
extend the same presumption to a juvenile
who commits a sex crime. See ante, at
2041. I simply cannot accept that these
subjective judgments of proportionality
are ones the Eighth Amendment authorizes us to make.
2057
And even if Grahams sentence is higher

than ones he might have received for an
armed burglary with assault in other jurisdictions, see ante, at 2041, this hardly
seems relevant if one takes seriously the
principle that [a]bsent a constitutionally
imposed uniformity inimical to traditional
notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any
other State. Harmelin, supra, at 1000,
111 S.Ct. 2680 (opinion of KENNEDY, J.)
(quoting Rummel, 445 U.S., at 282, 100
S.Ct. 1133; emphasis added). Applying
Solem, the Court has upheld a 25years

tolife sentence for theft under Californias
recidivist statute, despite the fact that the
State and its amici could cite only a
single instance of a similar sentence imposed outside the context of Californias
three strikes law, out of a prison population [then] approaching two million individuals. Ewing, 538 U.S., at 47, 123 S.Ct.
1179 (BREYER, J., dissenting). It has
also upheld a life-without-parole sentence
for a first-time drug offender in Michigan
charged with possessing 672 grams of cocaine despite the fact that only one other
State would have authorized such a stiff
penalty for a first-time drug offense, and
even that State required a far greater
quantity of cocaine (10 kilograms) to trigger the penalty. See Harmelin, supra, at
1026, 111 S.Ct. 2680 (White, J., dissenting).
Grahams sentence is certainly less rare
than the sentences upheld in these cases,
so his claim fails even under Solem.
*
*
*
Both the Court and the concurrence
claim their decisions to be narrow ones,
but both invite a host of line-drawing problems to which courts must seek answers
beyond the strictures of the Constitution.
The Court holds that [a] State is not
required to guarantee eventual freedom to
a juvenile offender convicted of a nonhomicide crime, but must provide the offender
with some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Ante, at 2030.
But what, exactly, does such a meaningful opportunity entail? When must it occur? And what Eighth Amendment principles will govern review by the parole
boards the Court now demands that States
empanel? The Court provides no answers
to these questions, which will no doubt
embroil the courts for years.13
It bears noting that Colorado, one of the
five States that prohibit life-without-parole
The objective elements of the Solem

test provide no additional support for the
concurrences conclusion. The concurrence compares Grahams sentence to
similar sentences in Florida and concludes that Grahams sentence was far
more severe. Ante, at 2040 (ROBERTS,
C.J., concurring in judgment).
But
strangely, the concurrence uses average
sentences for burglary or robbery offenses
as examples of similar offenses, even
though it seems that a run-of-the-mill burglary or robbery is not at all similar to
Grahams criminal history, which includes
a charge for armed burglary with assault,
and a probation violation for invading a
home at gunpoint.
13.
2058
V
The ultimate question in this case is not
whether a life-without-parole sentence fits
the crime at issue here or the crimes of
juvenile nonhomicide offenders more generally, but to whom the Constitution assigns that decision. The Florida Legislature has concluded that such sentences
should be available for persons under 18
who commit certain crimes, and the trial
judge in this case decided to impose that
legislatively authorized sentence here.
Because a life-without-parole prison sentence is not a cruel and unusual method
of punishment under any standard, the
Eighth Amendment gives this Court no
authority to reject those judgments.
It would be unjustifiable for the Court to
declare otherwise even if it could claim
that a bare majority of state laws supported its independent moral view. The
fact that the Court categorically prohibits
life-without-parole sentences for juvenile
nonhomicide offenders in the face of an
overwhelming legislative majority in favor
of leaving that sentencing option available
under certain cases simply illustrates how
far beyond any cognizable constitutional
principle the Court has reached to ensure
that its own sense of morality and retributive justice pre-empts that of the people
and their representatives.
I agree with Justice STEVENS that
[w]e learn, sometimes, from our mistakes. Ante, at 2036 (concurring opinion).
Perhaps one day the Court will learn from
this one.
sentences for juvenile nonhomicide offenders,
permits such offenders to be sentenced to
mandatory terms of imprisonment for up to
40 years. Colo.Rev.Stat. 181.3401(4)(b)
(2009). In light of the volume of state and
federal legislation that presently permits lifewithout-parole sentences for juvenile nonhomicide offenders, it would be impossible to
argue that there is any objective evidence of
Justice ALITO, dissenting.

I join Parts I and III of Justice THOMASs dissenting opinion. I write separately to make two points.
First, the Court holds only that for a
homicide the Eighth Amendment forbids
the sentence of life without parole. Ante,
at 2030 (emphasis added). Nothing in the
Courts opinion affects the imposition of a
sentence to a term of years without the
possibility of parole. Indeed, petitioner
conceded at oral argument that a sentence
of as much as 40 years without the possibility of parole probably would be constitutional. Tr. of Oral Arg. 67; see also
ante, at 2057, n. 12 (THOMAS, J., dissenting).
Second, the question whether petitioners sentence violates the narrow, as-applied proportionality principle that applies
to noncapital sentences is not properly before us in this case. Although petitioner
asserted an as-applied proportionality
challenge to his sentence before the Florida courts, see 982 So.2d 43, 5153 (Fla.
App.2008), he did not include an as-applied
claim in his petition for certiorari or in his
merits briefs before this Court. Instead,
petitioner argued for only a categorical
rule banning the imposition of life without
parole on any juvenile convicted of a nonhomicide offense.
Because petitioner
abandoned his as-applied claim, I would
not reach that issue. See this Courts
Rule 14.1(a); Yee v. Escondido, 503 U.S.
agreement that a juvenile is constitutionally
entitled to a parole hearing any sooner than
40 years after conviction. See Tr. of Oral
Arg. 67 (counsel for Graham, stating that,
[o]ur position is that it should be left up to
the States to decide. We think that the TTT
Colorado provision would probably be constitutional).
2059
SULLIVAN v. FLORIDA
Cite as 130 S.Ct. 2059 (2010)
519, 534538, 112 S.Ct. 1522, 118 L.Ed.2d

153 (1992).
Joe Harris SULLIVAN, Petitioner,

v.
FLORIDA.
No. 087621.
May 17, 2010.
PER CURIAM.
The writ of certiorari is dismissed as
improvidently granted.
It is so ordered.
1084
Fla.
447 (Fla. 2d DCA 1994); Aprile v. Suncoast Schs. Fed. Credit Union, 596 So.2d
1290, 1293 (Fla. 2d DCA 1992); Harr v.
Hillsborough Cnty. Mental Health Ctr.,
591 So.2d 1051, 1054 (Fla. 2d DCA 1991).
Mr. Gross simply has not established for
purposes of summary judgment that Mr.
Fuss could or should have discovered the
facts of the alleged fraud during the relevant window of time. It is obvious from
the earlier trial transcript that Mr. Gross
was never going to volunteer these facts to
Mr. Fuss. The record currently does not
establish that the critical price disparity
could have been discovered from any public record. It is unclear to me what type
of lawsuit Mr. Fuss could have filed shortly after the closing as a vehicle to discover
this information. Mr. Gross has not been
a very cooperative defendant in this lawsuit, and I cannot conclude as a matter of
law that Mr. Fuss would have discovered
this information in another lawsuit within
the relevant twenty-three months. Accordingly, I believe the trial court erred in
relying on Acosta and that a summary
judgment based on the statute of limitations was not authorized on this record.
partner in such a transaction gives his

word, I do not conclude that the law declares that the other partner is unreasonable, as a matter of law, in relying on his
partners representations. There is an issue of fact whether Mr. Fuss reasonably
relied to his detriment on the factual representations of Mr. Gross.
Accordingly, I would reverse and remand for further proceedings.
,
Leighdon HENRY, Appellant,
v.
STATE of Florida, Appellee.
Nos. 5D083779, 5D103021.
Fifth District.
Jan. 20, 2012.
Rehearing Denied Feb. 24, 2012.
The order on appeal also finds that Mr.

Fuss did not reasonably rely to his detriment on anything that [Mr. Gross] said or
did. The trial court explained that Mr.
Fuss closed the transaction with knowledge that the deal might not be what he
believed it was. I simply conclude that
this reasoning is incorrect.

the Circuit Court, Orange County, Julie H.
OKane, J., of sexual battery, kidnapping,
robbery, carjacking, and burglary of a
dwelling, arising out of acts against a single victim when he was 17 years of age.
Defendant appealed.
There clearly is an issue in this case as

to whether Mr. Fuss sustained detriment as a result of the terms of the two
sales. There appears to be a $250,000
imbalance between what Mr. Fuss was
promised and what he received. It is at
least an unresolved question of fact whether the buyer would have adjusted these
terms to equalize the two sales if Mr. Fuss
had known they were unequal. When a
Affirmed.
Holding: The Fifth District Court of Appeal, Griffin, J., held that defendants aggregate term-of-years sentence totaling 90
years in prison was not unconstitutionally
excessive.
Sentencing and Punishment O345, 1508

Defendants aggregate term-of-years
sentence totaling 90 years in prison, of
HENRY v. STATE
which he would be required to serve at

least 76.5 years without the possibility of
parole, for multiple felonies committed
when he was 17 years of age, including
sexual battery with a deadly weapon or
physical force, kidnapping with intent to
commit a felony with a firearm, robbery,
carjacking, and burglary of a dwelling, was
not unconstitutionally excessive under the
Eighth Amendment.
U.S.C.A. Const.
Amend. 8.
Leighdon Henry, Jasper, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant
Attorney General, Daytona Beach, for Appellee.
Gerard F. Glynn, Barry University
School of Law, Orlando, Sonya Rudenstine, Gainesville, and Michael Ufferman,
Tallahassee, Amici Curiae of The Juvenile
Life Without Parole Defense Resource
Center and The Florida Association of
Criminal Defense Lawyers in Support of
Appellant Henry.
GRIFFIN, J.
Leighdon Henry [Henry] pro se appeals his judgment and sentence for three
counts of sexual battery with a deadly
weapon or physical force, one count of
kidnapping with intent to commit a felony
(with a firearm), two counts of robbery,
one count of carjacking, one count of burglary of a dwelling, and one count of possession of twenty grams or less of cannabis. We find no error and affirm without
comment on all issues except one. Henry
contends that the sentences he received
violate the constitutional prohibition
against cruel and unusual punishment in
light of the United States Supreme Courts
decision in Graham v. Florida, U.S.
Fla.
1085
, 130 S.Ct. 2011, 176 L.Ed.2d 825

(2010). At the time of his offenses, Henry
was seventeen years old.
Henrys convictions and sentences arose
from the following facts: The victim entered her apartment and found her sliding
door had been opened. She saw a stranger, Henry, standing in the hallway. She
tried to run, but he grabbed her from
behind, causing her to fall and injure her
face. Henry put his hand over her mouth
and told her to be quiet. He then showed
her a gun and told her to get up. He took
her into her bedroom, showed her the gun
and slapped her face. He licked her genitals, penetrated her vagina and anus and
put his penis in her mouth. He then made
her shower. Henry took food from the
victims kitchen and forced her to take him
to an ATM machine and withdraw money.
The victim was able to get away after they
left the ATM.
At the time of his sentencing on October
17, 2008, the trial court found that Henry
qualified as a sexual predator, and sentenced him as follows: Counts I, II, & III
(sexual battery with a deadly weapon or
physical force)natural life on each count,
Count V (kidnapping with intent to commit
a felony)thirty years, Count VI (robbery)-fifteen years, Count VII (carjacking)thirty years, Count VIII (robbery)
fifteen years, Count IX (burglary of a
dwelling)fifteen years, and Count X
(possession of 20 grams or less of cannabis
(marijuana)364 days in jail with credit
for 364 time served. Counts I, II, III, V,
and VI were ordered to run concurrently
with each other; Counts VII, VIII, and IX
were ordered to run consecutively with
each other as well as consecutively to
Counts I, II, III, V, and VI; and Count X
was ordered to run concurrently to Count
I. Thereafter, on October 20, 2008, the trial
court entered an order, nunc pro tunc,
correcting sentencing with respect to
1086
Fla.
Count V, in which it directed that no minimum mandatory be imposed, pursuant to

the jury verdict.
Henry filed a notice of appeal on October 24, 2008. Thereafter, Henry filed a
rule 3.800(b) motion, and an amended rule
3.800(b) motion, to correct sentencing error, in which he argued that the imposition
of life sentences constituted cruel and unusual punishment under Graham. After
conducting a hearing, the trial court granted Henrys motion and entered an order
re-sentencing Henry on the sexual battery
counts to thirty years on each count concurrent to each other, but consecutive to
the remaining counts. Thus, Henry was
sentenced to a total of ninety years in
prison. In all other respects, the sentencing remained the same.
In this appeal, Henry contends that his
current sentence constitutes a de facto sentence of life without the possibility of parole and that such a sentence meets the
test of cruel and unusual punishment under Graham. Although the time that
Henry is to serve can be shortened
through incentive and meritorious gaintime, under Florida law, he must serve
eighty-five percent; therefore, Henry
should serve at least 76.5 years.1 Henry
has filed a National Vital Statistics Report
as supplemental authority, suggesting that
his life expectancy at birth by race and sex
is 64.3 years. Henry argues that because
he is going to have to serve more years in
prison than, statistically, he is expected to
live, his sentence is an unconstitutional de
facto life sentence.
1.
Section 921.002(1)(e), Florida Statutes, provides:

The sentence imposed by the sentencing
judge reflects the length of actual time to be
served, shortened only by the application of
incentive and meritorious gain-time as provided by law, and may not be shortened if
In Graham, the United States Supreme

Court addressed the issue of whether the
Constitution permits a juvenile offender to
be sentenced to life in prison without parole for a nonhomicide crime. 130 S.Ct.
at 201718. The State of Florida imposed
such a sentence, and the defendant challenge[d] the sentence under the Eighth
Amendments Cruel and Unusual Punishments Clause, made applicable to the
States by the Due Process Clause of the
Fourteenth Amendment. Id. at 2018.
After the defendant was found to have
violated his probation by committing a
home invasion robbery, by possessing a
firearm, and by associating with persons
engaged in criminal activity, he was adjudicated guilty of the earlier charges of
armed burglary and attempted armed robbery for which he had been serving probation. Id. at 201920. The trial court
sentenced him to the maximum sentence
authorized by law on each charge: life imprisonment for the armed burglary and 15
years for the attempted armed robbery.
Id. at 2020. Importantly, [b]ecause Florida TTT abolished its parole system, see
Fla. Stat. 921.002(1)(e) (2003), a life sentence gives a defendant no possibility of
release unless he is granted executive
clemency. Id.
The Supreme Court found:
The Constitution prohibits the imposition of a life without parole sentence on
a juvenile offender who did not commit
homicide. A State need not guarantee
the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some realistic opthe defendant would consequently serve
less than 85 percent of his or her term of
imprisonment
as
provided
in
s.
944.275(4)(b) 3. The provisions of chapter
947, relating to parole, shall not apply to
persons sentenced under the Criminal Punishment Code.
HENRY v. STATE
1087
without parole and other sentences of

imprisonmentfor example, TTT a
lengthy term sentence without eligibility
for parole, given to a 65yearold man).
This reality cannot be ignored.
portunity to obtain release before the

end of that term.
Id. at 2034. With respect to the defendant, the Court said:
Terrance Grahams sentence guarantees
he will die in prison without any meaningful opportunity to obtain release, no
matter what he might do to demonstrate
that the bad acts he committed as a
teenager are not representative of his
true character, even if he spends the
next half century attempting to atone
for his crimes and learn from his mistakes. The State has denied him any
chance to later demonstrate that he is fit
to rejoin society based solely on a nonhomicide crime that he committed while
he was a child in the eyes of the law.
This the Eighth Amendment does not
permit.
Fla.
Id. at 2028.
In his dissenting opinion, Justice Thomas discussed the evidence of the frequency
of the sentencing practice at issue. Id. at
2052 (Thomas, J., joined by Scalia, J., and
joined in Parts I and III by Alito, J.,
dissenting). He noted: [I]t seems odd
that the Court counts only those juveniles
sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences
(e.g., 70 or 80 years imprisonment), and
asserted: It is difficult to argue that a
judge or jury imposing such a long sentencewhich effectively denies the offender any material opportunity for parole
would express moral outrage at a lifewithout-parole sentence. Id. at 2052 n.
11. Justice Alito, in his dissenting opinion,
pointed out that [n]othing in the Courts
opinion affects the imposition of a sentence
to a term of years without the possibility
of parole, and that [i]ndeed, petitioner
conceded at oral argument that a sentence
of as much as 40 years without the possibility of parole probably would be constitutional. Id. at 2058 (Alito, J., dissenting).
Id. at 2033. The Court noted the global

consensus against the sentencing practice
in question. Id. It also noted that it has
recognized that defendants who do not kill,
intend to kill, or foresee that life will be
taken are categorically less deserving of
the most serious forms of punishment than
are murderers. Id. at 2027. The Court
observed that [l]ife without parole is an
especially harsh punishment for a juvenile, explaining:
Under this sentence a juvenile offender
will on average serve more years and a
greater percentage of his life in prison
than an adult offender. A 16yearold
and a 75yearold each sentenced to life
without parole receive the same punishment in name only. See Roper,[2] supra,
at 572, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1; cf. Harmelin,[3] supra, at
996, 501 U.S. 957, 111 S.Ct. 2680, 115
L.Ed.2d 836 (In some cases TTT there
will be negligible difference between life
The facts here are different from those

in Graham. Here, unlike the defendant in
Graham, Henry did not (in the end) receive a life sentence without parole for a
nonhomicide offense; he received a
lengthy aggregate term-of-years sentence
without the possibility of parole for multiple nonhomicide offenses. This precise issue has not yet been addressed by a Florida court, although, very recently in two
cases, the First District Court of Appeal
2.
3.

1183, 161 L.Ed.2d 1 (2005).

S.Ct. 2680, 115 L.Ed.2d 836 (1991).
1088
Fla.
did address the issue of a lengthy term-ofyears sentence imposed on a juvenile in

Gridine v. State, So.3d , 2011 WL
6849649 (Fla. 1st DCA 2011) and Thomas
v. State, 78 So.3d 644 (Fla. 1st DCA 2011).
In Gridine, the sentence at issue was seventy years for attempted first degree murder, and in Thomas, the sentences were
concurrent fifty years for armed robbery
and aggravated battery. In neither did
the First District find a constitutional violation based on Graham. See also Manuel
v. State, 48 So.3d 94, 98 n. 3 (Fla. 2d DCA
2010).
Courts in other jurisdictions that have
considered this issue have arrived at inconsistent conclusions. California has seen a
significant split among its intermediate appellate courts on the application of Graham to lengthy term-of-years sentences.
In People v. Mendez, 188 Cal.App.4th
47, 114 Cal.Rptr.3d 870, 873 (Cal.App.
2010), Division 2 of Californias Second
District Court of Appeal, applied the holding in Graham to a lengthy term-of-years
sentence that it characterized as a de facto
life sentence without the possibility of parole. Months later in People v. Caballero,
191 Cal.App.4th 1248, 119 Cal.Rptr.3d 920,
926 (Cal.App.2011), Division 4 of Californias Second District Court of Appeal, disagreed with the holding in Mendez, stating
that it decline[d] to follow Mendezs holding that the principles stated in Graham
bar a court from sentencing a juvenile
offender to a term-of-years sentence that
exceeds his or her life expectancy.
Thereafter, in People v. Ramirez, 193 Cal.
App.4th 613, 123 Cal.Rptr.3d 155, 165 (Cal.
App.2011), Division 4 of Californias Second District Court of Appeal, adhered to
the view in Caballero. However, in People
v. J.I.A., 196 Cal.App.4th 393, 127 Cal.
Rptr.3d 141, 149 (Cal.App.2011), Division 3
of Californias Fourth District Court of
Appeal, declined to follow Caballero, con-
cluding that the defendants sentence was

cruel and unusual punishment under Graham and Mendez where: [a]lthough [the
defendants] sentence [was] not technically
an LWOP [life without parole] sentence,
it [was] a de facto LWOP sentence because
he [was] not eligible for parole until about
the time he [was] expected to die. Again,
in People v. De Jesus Nunez, 195 Cal.
App.4th 414, 125 Cal.Rptr.3d 616, 618 (Cal.
App.2011), Division 3 of Californias
Fourth District Court of Appeal, agreed
with Mendez and disagreed with Ramirez,
stating that it perceive[d] no sound basis
to distinguish Grahams reasoning where a
term of years beyond the juveniles life
expectancy is tantamount to an LWOP
term. The California Supreme Court recently granted review of these decisions.
See People v. Caballero, 123 Cal.Rptr.3d
575, 250 P.3d 179 (2011), People v. Ramirez, 128 Cal.Rptr.3d 271, 255 P.3d 948
(2011), and People v. Nunez, 128 Cal.
Rptr.3d 274, 255 P.3d 951 (2011).
Unlike California, Georgia courts are, so
far, consistent in their view that Graham
is not implicated in a term-of-years sentence. See Adams v. State, 288 Ga. 695,
707 S.E.2d 359 (2011) (holding that sentence of mandatory twenty-five years followed by life on probation for aggravated
molestation of a four-year-old child does
not implicate categorical Eighth Amendment restriction under Graham, nor is it
grossly disproportionate for particular
crime); Middleton v. State, 313 Ga.App.
193, 721 S.E.2d 111 (Ga.Ct.App.2011) (determining that aggregate sentence of thirty years without parole for armed robbery,
two counts of aggravated assault, kidnapping and theft after sexual assault of a
fifty-four-year-old woman and theft of her
car and purse did not implicate Graham
because the defendant received a term-ofyears sentence).
Fla.
WHITE v. STATE
The Arizona Court of Appeals also recently considered the application of Graham in a case involving convictions of six
counts of arson of an occupied structure,
one count of attempted arson, fifteen
counts of endangerment, seven counts of
criminal damage and two counts of arson
of property, which, with a combination of
enhanced and consecutive sentences, totaled an aggregate of 139.75 years. State
v. Kasic, 265 P.3d 410 (Ariz.Ct.App.2011).
The court rejected the de facto life sentence argument, saying that the Graham
decision made clear that it applied only to
juvenile offenders sentenced to life without
parole for non-homicide offenses. The
court also pointed out that Kasic was convicted of thirty-two felonies and the longest sentence Kasic received for any one
offense was 15.75 years.
If we conclude that Graham does not
apply to aggregate term-of-years sentences, our path is clear. If, on the other
hand, under the notion that a term-ofyears sentence can be a de facto life sentence that violates the limitations of the
Eighth Amendment, Graham offers no direction whatsoever.4 At what number of
years would the Eighth Amendment become implicated in the sentencing of a
juvenile: twenty, thirty, forty, fifty, some
lesser or greater number? Would gain
time be taken into account? Could the
number vary from offender to offender
based on race, gender, socioeconomic class
or other criteria? Does the number of
crimes matter? There is language in the
Graham majority opinion that suggests
that no matter the number of offenses or
victims or type of crime, a juvenile may
not receive a sentence that will cause him
to spend his entire life incarcerated with4.
One of the underlying premises of Graham,

that juveniles, as a class, spend more time
incarcerated than do adults because life for
a juvenile is longer than life for an adult,
1089
out a chance for rehabilitation, in which

case it would make no logical difference
whether the sentence is life or 107
years.5 Without any tools to work with,
however, we can only apply Graham as it
is written. If the Supreme Court has
more in mind, it will have to say what that
is. We conclude that Henrys aggregate
term-of-years sentence is not invalid under
the Eighth Amendment and affirm the decision below.
AFFIRMED.
ORFINGER, C.J., and PALMER, J.,
concur.
,
Timothy E. WHITE, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D114240.
First District.
Jan. 24, 2012.
Rehearing Denied March 27, 2012.
Petition for Writ of MandamusOriginal Jurisdiction.
Timothy E. White, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
breaks down when term-of-years sentences
come into play.
5.
But see U.S. v. Mathurin, 2011 WL 2580775

(S.D.Fla. June 29, 2011).
2641
KENNEDY v. LOUISIANA
Cite as 128 S.Ct. 2641 (2008)
Patrick KENNEDY, Petitioner,

v.
LOUISIANA.
No. 07343.
Background: Defendant was convicted of
aggravated rape of his eight-year-old stepdaughter, and was sentenced to death. On
his appeal, the Supreme Court of Louisiana, 957 So.2d 757, affirmed. Defendant
petitioned for certiorari which was granted.
Holding: The Supreme Court, Kennedy,
J., held that the Eighth Amendment prohibits the death penalty for the rape of a
child where the crime did not result, and
was not intended to result, in death of the
victim.
Justice Alito filed dissenting opinion in
which Chief Justice Roberts and Justices
Scalia and Thomas joined.
The Eighth Amendment prohibits the
death penalty for the rape of a child where
the crime did not result, and was not intended to result, in death of the victim.
against capital punishment for crime of

child rape and evolving standards of decency. U.S.C.A. Const.Amend. 8; LSA
R.S. 14:42.
The Eighth Amendments protection
against excessive or cruel and unusual
punishments flows from the basic precept
of justice that punishment for a crime
should be graduated and proportioned to
the offense; whether that requirement has
been fulfilled is determined not by the
standards that prevailed when the Eighth
Amendment was adopted in 1791 but by
the norms that currently prevail.
4. Sentencing and Punishment O41, 44,
45
Punishment is justified under one or
more of three principal rationales: rehabilitation, deterrence, and retribution.
West Codenotes
Held Unconstitutional
LSAR.S. 14:42
Validity Called into Doubt
Wests Ga.Code Ann. 1661; MCA
455503;
10 Okl.St.Ann. 7115(K);
S.C.Code
1976,
163655(C)(1);
V.T.C.A., Penal Code 12.42(c)(3).
Syllabus *

Louisiana statute authorizing death
penalty for rape of child under 12 years of
age violated Eighth Amendment proscription against cruel and unusual punishment
when applied to defendant convicted of
aggravated rape of his then-eight-year-old
stepdaughter, where crime did not result,
and was not intended to result, in death of
victim, considering national consensus
Louisiana charged petitioner with the

aggravated rape of his then8yearold
stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape
of a child under 12. The State Supreme
Court affirmed, rejecting petitioners reliance on Coker v. Georgia, 433 U.S. 584, 97
S.Ct. 2861, 53 L.Ed.2d 982, which barred
the use of the death penalty as punishment
for the rape of an adult woman but left

282, 50 L.Ed. 499.
2642
open the question which, if any, other nonhomicide crimes can be punished by death
consistent with the Eighth Amendment.
Reasoning that children are a class in need
of special protection, the state court held
child rape to be unique in terms of the
harm it inflicts upon the victim and society
and concluded that, short of first-degree
murder, there is no crime more deserving
of death. The court acknowledged that
petitioner would be the first person executed since the state law was amended to
authorize the death penalty for child rape
in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for
that crime. However, emphasizing that
four more States had capitalized child rape
since 1995 and at least eight others had
authorized death for other nonhomicide
crimes, as well as that, under Roper v.
Simmons, 543 U.S. 551, 125 S.Ct. 1183,
161 L.Ed.2d 1, and Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335,
it is the direction of change rather than
the numerical count that is significant, the
court held petitioners death sentence to be
constitutional.
Held: The Eighth Amendment bars
Louisiana from imposing the death penalty
for the rape of a child where the crime did
not result, and was not intended to result,
in the victims death. Pp. 2649 2665.
1. The Amendments Cruel and Unusual Punishment Clause draw[s] its
meaning from the evolving standards of
decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S.
86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. The
standard for extreme cruelty itself remains the same, but its applicability must
change as the basic mores of society
change. Furman v. Georgia, 408 U.S.
238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346.
Under the precept of justice that punishment is to be graduated and proportioned
to the crime, informed by evolving standards, capital punishment must be limited
to those offenders who commit a narrow

category of the most serious crimes and
whose extreme culpability makes them the
most deserving of execution. Roper, supra, at 568, 125 S.Ct. 1183. Applying this
principle, the Court held in Roper and
Atkins that the execution of juveniles and
mentally retarded persons violates the
Eighth Amendment because the offender
has a diminished personal responsibility
for the crime. The Court also has found
the death penalty disproportionate to the
crime itself where the crime did not result,
or was not intended to result, in the victims death. See, e.g., Coker, supra; Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140. In making its
determination, the Court is guided by objective indicia of societys standards, as
state practice with respect to executions.
Roper, supra, at 563, 125 S.Ct. 1183. Consensus is not dispositive, however.
Whether the death penalty is disproportionate to the crime also depends on the
standards elaborated by controlling precedents and on the Courts own understanding and interpretation of the Eighth
purpose. Pp. 2649 2651.
2. A review of the authorities informed by contemporary norms, including
the history of the death penalty for this
and other nonhomicide crimes, current
state statutes and new enactments, and
the number of executions since 1964, demonstrates a national consensus against capital punishment for the crime of child rape.
Pp. 2651 2658.
(a) The Court follows the approach of
cases in which objective indicia of consensus demonstrated an opinion against the
death penalty for juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. Thirty-seven
Cite as 128 S.Ct. 2641 (2008)
jurisdictions36 States plus the Federal

Governmentcurrently impose capital
punishment, but only six States authorize
it for child rape. In 45 jurisdictions, by
contrast, petitioner could not be executed
for child rape of any kind. That number
surpasses the 30 States in Atkins and
Roper and the 42 in Enmund that prohibited the death penalty under the circumstances those cases considered.
Pp.
2651 2653.
(b) Respondents argument that Cokers general discussion contrasting murder
and rape, 433 U.S., at 598, 97 S.Ct. 2861,
has been interpreted too expansively, leading some States to conclude that Coker
applies to child rape when in fact it does
not, is unsound. Cokers holding was narrower than some of its language read in
isolation indicates. The Coker plurality
framed the question as whether, with respect to rape of an adult woman, the
death penalty is disproportionate punishment, id., at 592, 97 S.Ct. 2861, and it
repeated the phrase adult woman or
adult female eight times in discussing
the crime or the victim. The distinction
between adult and child rape was not
merely rhetorical; it was central to Cokers
reasoning, including its analysis of legislative consensus. See, e.g., id., at 595596,
97 S.Ct. 2861. There is little evidence to
support respondents contention that state
legislatures have understood Coker to
state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not address that
crime. Accordingly, the small number of
States that have enacted the death penalty
for child rape is relevant to determining
whether there is a consensus against capital punishment for the rape of a child. Pp.
26532656.
(c) A consistent direction of change in
support of the death penalty for child rape
might counterbalance an otherwise weak
demonstration of consensus, see, e.g., At-
2643
kins, 536 U.S., at 315, 122 S.Ct. 2242, but

no showing of consistent change has been
made here. That five States may have
had pending legislation authorizing death
for child rape is not dispositive because it
is not this Courts practice, nor is it sound,
to find contemporary norms based on legislation proposed but not yet enacted. Indeed, since the parties submitted their
briefs, the legislation in at least two of the
five States has failed. Further, evidence
that, in the last 13 years, six new death
penalty statutes have been enacted, three
in the last two years, is not as significant
as the data in Atkins, where 18 States
between 1986 and 2001 had enacted legislation prohibiting the execution of mentally
retarded persons. See id., at 314315, 122
S.Ct. 2242. Respondent argues that this
case is like Roper because, there, only five
States had shifted their positions between
1989 and 2005, one less State than here.
See 543 U.S., at 565, 125 S.Ct. 1183. But
the Roper Court emphasized that the slow
pace of abolition was counterbalanced by
the total number of States that had recognized the impropriety of executing juvenile
offenders. See id., at 566567, 125 S.Ct.
1183. Here, the fact that only six States
have made child rape a capital offense is
not an indication of a trend or change in
direction comparable to the one in Roper.
The evidence bears a closer resemblance
to that in Enmund, where the Court found
a national consensus against death for vicarious felony murder despite eight jurisdictions having authorized it. See 458
U.S., at 789, 792, 102 S.Ct. 3368. Pp.
2656 2657.
(d) Execution statistics also confirm
that there is a social consensus against the
death penalty for child rape. Nine States
have permitted capital punishment for
adult or child rape for some length of time
between the Courts 1972 Furman decision
and today; yet no individual has been exe-
2644
cuted for the rape of an adult or child

since 1964, and no execution for any other
nonhomicide offense has been conducted
since 1963. Louisiana is the only State
since 1964 that has sentenced an individual
to death for child rape, and petitioner and
another man so sentenced are the only
individuals now on death row in the United
States for nonhomicide offenses. Pp.
2657 2658.
3. Informed by its own precedents
and its understanding of the Constitution
and the rights it secures, the Court concludes, in its independent judgment, that
the death penalty is not a proportional
punishment for the crime of child rape.
Pp. 2658 2664.
(a) The Courts own judgment should
be brought to bear on the death penaltys
acceptability under the Eighth Amendment. See, e.g., Coker, supra, at 597, 97
S.Ct. 2861. Rapes permanent and devastating impact on a child suggests moral
grounds for questioning a rule barring
capital punishment simply because the
crime did not result in the victims death,
but it does not follow that death is a
proportionate penalty for child rape. The
constitutional prohibition against excessive
or cruel and unusual punishments mandates that punishment be exercised within the limits of civilized standards. Trop,
356 U.S., at 99100, 78 S.Ct. 590. Evolving standards of decency counsel the Court
to be most hesitant before allowing extension of the death penalty, especially where
no life was taken in the commission of the
crime. See, e.g., Coker, 433 U.S., at 597
598, 97 S.Ct. 2861; Enmund, 458 U.S., at
797, 102 S.Ct. 3368. Consistent with those
evolving standards and the teachings of its
precedents, the Court concludes that there
is a distinction between intentional firstdegree murder on the one hand and nonhomicide crimes against individuals, even
including child rape, on the other. The
latter crimes may be devastating in their
harm, as here, but in terms of moral

depravity and of the injury to the person
and to the public, they cannot compare to
murder in their severity and irrevocability, id, at 598, 97 S.Ct. 2861. The Court
finds significant the substantial number of
executions that would be allowed for child
rape under respondents approach. Although narrowing aggravators might be
used to ensure the death penaltys restrained application in this context, as they
are in the context of capital murder, all
such standards have the potential to result
in some inconsistency of application. The
Court, for example, has acknowledged that
the requirement of general rules to ensure
consistency of treatment, see, e.g., Godfrey
v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64
L.Ed.2d 398, and the insistence that capital sentencing be individualized, see, e.g.,
96 S.Ct. 2978, 49 L.Ed.2d 944, have resulted in tension and imprecision. This approach might be sound with respect to
capital murder but it should not be introduced into the justice system where death
has not occurred. The Court has spent
more than 32 years developing a foundational jurisprudence for capital murder to
guide the States and juries in imposing the
death penalty. Beginning the same process for crimes for which no one has been
executed in more than 40 years would
require experimentation in an area where
a failed experiment would result in the
execution of individuals undeserving of
death. Pp. 2658 2661.
(b) The Courts decision is consistent
with the justifications offered for the death
penalty, retribution and deterrence, see,
e.g., Gregg v. Georgia, 428 U.S. 153, 183, 96
S.Ct. 2909, 49 L.Ed.2d 859. Among the
factors for determining whether retribution is served, the Court must look to
whether the death penalty balances the
wrong to the victim in nonhomicide cases.
Cite as 128 S.Ct. 2641 (2008)
Cf. Roper, supra, at 571, 125 S.Ct. 1183.

It is not at all evident that the child rape
victims hurt is lessened when the law
permits the perpetrators death, given that
capital cases require a long-term commitment by those testifying for the prosecution. Societys desire to inflict death for
child rape by enlisting the child victim to
assist it over the course of years in asking
for capital punishment forces a moral
choice on the child, who is not of mature
age to make that choice. There are also
relevant systemic concerns in prosecuting
child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a special risk of wrongful execution in some
cases. Cf. Atkins, supra, at 321, 122 S.Ct.
2242. As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but
may add to the risk of nonreporting of
child rape out of fear of negative consequences for the perpetrator, especially if
he is a family member. And, by in effect
making the punishment for child rape and
murder equivalent, a State may remove a
strong incentive for the rapist not to kill
his victim. Pp. 2661 2664.
4. The concern that the Courts holding will effectively block further development of a consensus favoring the death
penalty for child rape overlooks the principle that the Eighth Amendment is defined
by the evolving standards of decency that
mark the progress of a maturing society,
Trop, 356 U.S., at 101, 78 S.Ct. 590. Confirmed by the Courts repeated, consistent
rulings, this principle requires that resort
to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that,
in the case of crimes against individuals,
take the victims life. Pp. 2664 2665.
957 So.2d 757, reversed and remanded.
2645

SOUTER, GINSBURG, and BREYER,
JJ., joined. ALITO, J., filed a dissenting
opinion, in which ROBERTS, C.J., and
SCALIA and THOMAS, JJ., joined.
Jeffrey L. Fisher, for petitioner.
Juliet L. Clark, for respondent.
R. Ted Cruz, et al. as amici curiae, by
special leave of Court, in support of respondent.
Jelpi P. Picou, G. Ben Cohen, New Orleans, LA, Martin A. Stern, Ravi Sinha,
Adams and Reese LLP, New Orleans, LA,
Jeffrey L. Fisher, Counsel of Record,
Pamela S. Karlan, Stanford Law School,
Stanford, CA, for petitioner.
Paul D. Connick, Jr., District Attorney,
Jefferson Parish, State of Louisiana, Juliet
L. Clark, Counsel of Record, Assistant
District Attorney, Terry M. Boudreaux,
Assistant District Attorney, Office of the
District Attorney, Gretna, Louisiana, for
respondent.
2008 WL 466093 (Pet.Brief)
2008 WL 727814 (Resp.Brief)
[1, 2] The National Government and,
beyond it, the separate States are bound
by the proscriptive mandates of the Eighth
Amendment to the Constitution of the
United States, and all persons within those
respective jurisdictions may invoke its protection. See Amdts. 8 and 14, 1; Robinson v. California, 370 U.S. 660, 82 S.Ct.
1417, 8 L.Ed.2d 758 (1962). Patrick Kennedy, the petitioner here, seeks to set
aside his death sentence under the Eighth
Amendment. He was charged by the re-
2646
spondent, the State of Louisiana, with the

aggravated rape of his then8yearold
stepdaughter. After a jury trial petitioner
was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12
years of age. See La. Stat. Ann. 14:42
(West 1997 and Supp.1998). This case
presents the question whether the Constitution bars respondent from imposing the
death penalty for the rape of a child where
the crime did not result, and was not intended to result, in death of the victim.
We hold the Eighth Amendment prohibits
the death penalty for this offense. The
Louisiana statute is unconstitutional.
I
Petitioners crime was one that cannot
be recounted in these pages in a way
sufficient to capture in full the hurt and
horror inflicted on his victim or to convey
the revulsion society, and the jury that
represents it, sought to express by sentencing petitioner to death. At 9:18 a.m.
on March 2, 1998, petitioner called 911 to
report that his stepdaughter, referred to
here as L. H., had been raped. He told
the 911 operator that L.H. had been in the
garage while he readied his son for school.
Upon hearing loud screaming, petitioner
said, he ran outside and found L.H. in the
side yard. Two neighborhood boys, petitioner told the operator, had dragged L.H.
from the garage to the yard, pushed her
down, and raped her. Petitioner claimed
he saw one of the boys riding away on a
blue 10speed bicycle.
When police arrived at petitioners home
between 9:20 and 9:30 a.m., they found
L.H. on her bed, wearing a T-shirt and
wrapped in a bloody blanket. She was
bleeding profusely from the vaginal area.
Petitioner told police he had carried her
from the yard to the bathtub and then to
the bed. Consistent with this explanation,
police found a thin line of blood drops in

the garage on the way to the house and
then up the stairs. Once in the bedroom,
petitioner had used a basin of water and a
cloth to wipe blood from the victim. This
later prevented medical personnel from
collecting a reliable DNA sample.
L.H. was transported to the Childrens
Hospital. An expert in pediatric forensic
medicine testified that L. H.s injuries
were the most severe he had seen from a
sexual assault in his four years of practice.
A laceration to the left wall of the vagina
had separated her cervix from the back of
her vagina, causing her rectum to protrude
into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required
emergency surgery.
At the scene of the crime, at the hospital, and in the first weeks that followed,
both L.H. and petitioner maintained in
their accounts to investigators that L.H.
had been raped by two neighborhood boys.
One of L. H.s doctors testified at trial that
L.H. told all hospital personnel the same
version of the rape, although she reportedly told one family member that petitioner
raped her. L.H. was interviewed several
days after the rape by a psychologist. The
interview was videotaped, lasted three
hours over two days, and was introduced
into evidence at trial. On the tape one can
see that L.H. had difficulty discussing the
subject of the rape. She spoke haltingly
and with long pauses and frequent movement. Early in the interview, L.H. expressed reservations about the questions
being asked:
Im going to tell the same story. They
just want me to change it TTT. They
want me to say my Dad did it TTT. I
dont want to say it TTT. I tell them the
same, same story. Def. Exh. D7,
01:29:07:36.
Cite as 128 S.Ct. 2641 (2008)
She told the psychologist that she had

been playing in the garage when a boy
came over and asked her about Girl Scout
cookies she was selling; and that the boy
pulled [her by the legs to] the backyard,
id., at 01:47:41:52, where he placed his
hand over her mouth, pulled down [her]
shorts, Def. Exh. D8, 00:03:11:12, and
raped her, id., at 00:14:39:40.
Eight days after the crime, and despite
L. H.s insistence that petitioner was not
the offender, petitioner was arrested for
the rape. The States investigation had
drawn the accuracy of petitioner and L.
H.s story into question. Though the defense at trial proffered alternative explanations, the case for the prosecution, credited
by the jury, was based upon the following
evidence: An inspection of the side yard
immediately after the assault was inconsistent with a rape having occurred there, the
grass having been found mostly undisturbed but for a small patch of coagulated
blood. Petitioner said that one of the
perpetrators fled the crime scene on a blue
10speed bicycle but gave inconsistent descriptions of the bicycles features, such as
its handlebars. Investigators found a bicycle matching petitioner and L. H.s description in tall grass behind a nearby
apartment, and petitioner identified it as
the bicycle one of the perpetrators was
riding. Yet its tires were flat, it did not
have gears, and it was covered in spider
webs. In addition police found blood on
the underside of L. H.s mattress. This
convinced them the rape took place in her
bedroom, not outside the house.
Police also found that petitioner made
two telephone calls on the morning of the
rape. Sometime before 6:15 a.m., petitioner called his employer and left a message
that he was unavailable to work that day.
Petitioner called back between 6:30 and
7:30 a.m. to ask a colleague how to get
blood out of a white carpet because his
2647
daughter had just become a young

lady. Brief for Respondent 12. At 7:37
a.m., petitioner called B & B Carpet
Cleaning and requested urgent assistance
in removing bloodstains from a carpet.
Petitioner did not call 911 until about an
hour and a half later.
About a month after petitioners arrest
L.H. was removed from the custody of her
mother, who had maintained until that
point that petitioner was not involved in
the rape. On June 22, 1998, L.H. was
returned home and told her mother for the
first time that petitioner had raped her.
And on December 16, 1999, about 21
months after the rape, L.H. recorded her
accusation in a videotaped interview with
the Child Advocacy Center.
The State charged petitioner with aggravated rape of a child under La. Stat.
Ann. 14:42 (West 1997 and Supp.1998)
and sought the death penalty. At all times
relevant to petitioners case, the statute
provided:
A. Aggravated rape is a rape committed TTT where the anal or vaginal
sexual intercourse is deemed to be without lawful consent of the victim because
it is committed under any one or more
of the following circumstances:
TTTTT
(4) When the victim is under the age
of twelve years. Lack of knowledge of
the victims age shall not be a defense.
TTTTT
D. Whoever commits the crime of
aggravated rape shall be punished by
life imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence.
(1) However, if the victim was under
the age of twelve years, as provided by
Paragraph A(4) of this Section:
(a) And if the district attorney seeks
a capital verdict, the offender shall be
2648
punished by death or life imprisonment

at hard labor without benefit of parole,
probation, or suspension of sentence, in
accordance with the determination of the
jury.
(Since petitioner was convicted and sentenced, the statute has been amended to
include oral intercourse within the definition of aggravated rape and to increase the
age of the victim from 12 to 13. See La.
Stat. Ann. 14:42 (West Supp.2007).)
Aggravating circumstances are set forth
in La.Code Crim. Proc. Ann., Art. 905.4
(West 1997 Supp.). In pertinent part and
at all times relevant to petitioners case,
the provision stated:
A. The following shall be considered aggravating circumstances:
(1) The offender was engaged in the
perpetration or attempted perpetration
of aggravated rape, forcible rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated
arson, aggravated escape, assault by
drive-by shooting, armed robbery, first
degree robbery, or simple robbery.
TTTTT
(10) The victim was under the age of
twelve years or sixty-five years of age or
older.
The trial began in August 2003. L.H.
was then 13 years old. She testified that
she woke up one morning and Patrick
was on top of [her]. She remembered
petitioner bringing her [a] cup of orange
juice and pills chopped up in it after the
rape and overhearing him on the telephone
saying she had become a young lady.
20051981, pp. 12, 15, 16 (La.5/22/07), 957
So.2d 757, 767, 769, 770. L.H. acknowledged that she had accused two neighborhood boys but testified petitioner told her
to say this and that it was untrue. Id., at
769.
The jury having found petitioner guilty

of aggravated rape, the penalty phase ensued. The State presented the testimony
of S.L., who is the cousin and goddaughter
of petitioners ex-wife. S.L. testified that
petitioner sexually abused her three times
when she was eight years old and that the
last time involved sexual intercourse. Id.,
at 772. She did not tell anyone until two
years later and did not pursue legal action.
The jury unanimously determined that
petitioner should be sentenced to death.
The Supreme Court of Louisiana affirmed.
See id., at 779789, 793; see also State v.
Wilson, 961392, 962076 (La.12/13/96),
685 So.2d 1063 (upholding the constitutionality of the death penalty for child rape).
The court rejected petitioners reliance on
Coker v. Georgia, 433 U.S. 584, 97 S.Ct.
2861, 53 L.Ed.2d 982 (1977), noting that,
while Coker bars the use of the death
penalty as punishment for the rape of an
adult woman, it left open the question
which, if any, other nonhomicide crimes
can be punished by death consistent with
the Eighth Amendment. Because children are a class that need special protection, the state court reasoned, the rape
of a child is unique in terms of the harm it
inflicts upon the victim and our society.
957 So.2d, at 781.
The court acknowledged that petitioner
would be the first person executed for
committing child rape since La. Stat. Ann.
14:42 was amended in 1995 and that
Louisiana is in the minority of jurisdictions
that authorize the death penalty for the
crime of child rape. But following the
approach of Roper v. Simmons, 543 U.S.
551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),
and Atkins v. Virginia, 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335 (2002), it
found significant not the numerical counting of which [S]tates TTT stand for or
against a particular capital prosecution,
but the direction of change. 957 So.2d,
Cite as 128 S.Ct. 2641 (2008)
at 783 (emphasis deleted). Since 1993, the

court explained, four more StatesOklahoma, South Carolina, Montana, and Georgiahad capitalized the crime of child
rape and at least eight States had authorized capital punishment for other nonhomicide crimes. By its count, 14 of the then
38 States permitting capital punishment,
plus the Federal Government, allowed the
death penalty for nonhomicide crimes and
5 allowed the death penalty for the crime
of child rape. See id., at 785786.
The state court next asked whether
child rapists rank among the worst offenders. Id., at 788. It noted the severity of the crime; that the execution of child
rapists would serve the goals of deterrence
and retribution; and that, unlike in Atkins
and Roper, there were no characteristics of
petitioner that tended to mitigate his moral culpability. Id., at 788789. It concluded: [S]hort of first-degree murder, we
can think of no other non-homicide crime
more deserving [of capital punishment].
Id., at 789.
On this reasoning the Supreme Court of
Louisiana rejected petitioners argument
that the death penalty for the rape of a
child under 12 years is disproportionate
and upheld the constitutionality of the statute. Chief Justice Calogero dissented.
Coker, supra, and Eberheart v. Georgia,
433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d
1104 (1977), in his view, set out a brightline and easily administered rule that the
Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim. 957 So.2d,
at 794.
We granted certiorari. See 552 U.S.
, 128 S.Ct. 829, 169 L.Ed.2d 625
(2008).
II
[3] The Eighth Amendment, applicable
to the States through the Fourteenth
2649
Amendment, provides that [e]xcessive bail

shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted. The Amendment proscribes all excessive punishments, as well
as cruel and unusual punishments that
may or may not be excessive. Atkins,
536 U.S., at 311, n. 7, 122 S.Ct. 2242. The
Court explained in Atkins, id., at 311, 122
S.Ct. 2242, and Roper, supra, at 560, 125
S.Ct. 1183, that the Eighth Amendments
protection against excessive or cruel and
unusual punishments flows from the basic
precept of justice that punishment for [a]
crime should be graduated and proportioned to [the] offense. Weems v. United
States, 217 U.S. 349, 367, 30 S.Ct. 544, 54
L.Ed. 793 (1910). Whether this requirement has been fulfilled is determined not
by the standards that prevailed when the
Eighth Amendment was adopted in 1791
but by the norms that currently prevail.
Atkins, supra, at 311, 122 S.Ct. 2242. The
Amendment draw[s] its meaning from the
evolving standards of decency that mark
the progress of a maturing society. Trop
v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2
L.Ed.2d 630 (1958) (plurality opinion).
This is because [t]he standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment. The
standard itself remains the same, but its
applicability must change as the basic
mores of society change. Furman v.
Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726,
33 L.Ed.2d 346 (1972) (Burger, C. J., dissenting).
[4] Evolving standards of decency
must embrace and express respect for the
dignity of the person, and the punishment
of criminals must conform to that rule.
See Trop, supra, at 100, 78 S.Ct. 590 (plurality opinion). As we shall discuss, punishment is justified under one or more of
three principal rationales: rehabilitation,
deterrence, and retribution. See Harme-
2650
lin v. Michigan, 501 U.S. 957, 999, 111

S.Ct. 2680, 115 L.Ed.2d 836 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also Part IVB,
infra. It is the last of these, retribution,
that most often can contradict the laws
own ends. This is of particular concern
when the Court interprets the meaning of
the Eighth Amendment in capital cases.
When the law punishes by death, it risks
its own sudden descent into brutality,
transgressing the constitutional commitment to decency and restraint.
For these reasons we have explained
that capital punishment must be limited
to those offenders who commit a narrow
whose extreme culpability makes them the
most deserving of execution. Roper, supra, at 568, 125 S.Ct. 1183 (quoting Atkins,
supra, at 319, 122 S.Ct. 2242). Though the
death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U.S. 153,
96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the
Court insists upon confining the instances
in which the punishment can be imposed.
Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are
punishments violative of the Eighth
Amendment because the offender had a
diminished personal responsibility for the
crime. See Roper, supra, at 571573, 125
S.Ct. 1183; Atkins, supra, at 318, 320, 122
S.Ct. 2242. The Court further has held
that the death penalty can be disproportionate to the crime itself where the crime
did not result, or was not intended to
result, in death of the victim. In Coker,
433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d
982, for instance, the Court held it would
be unconstitutional to execute an offender
who had raped an adult woman. See also
Eberheart, supra (holding unconstitutional
in light of Coker a sentence of death for
the kidnaping and rape of an adult wom-
an). And in Enmund v. Florida, 458 U.S.

782, 102 S.Ct. 3368, 73 L.Ed.2d 1140
(1982), the Court overturned the capital
sentence of a defendant who aided and
abetted a robbery during which a murder
was committed but did not himself kill,
attempt to kill, or intend that a killing
would take place. On the other hand, in
Tison v. Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987), the Court
allowed the defendants death sentences to
stand where they did not themselves kill
the victims but their involvement in the
events leading up to the murders was active, recklessly indifferent, and substantial.
In these cases the Court has been guided by objective indicia of societys standards, as expressed in legislative enactments and state practice with respect to
executions. Roper, 543 U.S., at 563, 125
S.Ct. 1183; see also Coker, supra, at 593
597, 97 S.Ct. 2861 (plurality opinion) (finding that both legislatures and juries had
firmly rejected the penalty of death for the
rape of an adult woman); Enmund, supra,
at 788, 102 S.Ct. 3368 (looking to historical development of the punishment at issue, legislative judgments, international
opinion, and the sentencing decisions juries have made). The inquiry does not
end there, however. Consensus is not dispositive. Whether the death penalty is
disproportionate to the crime committed
depends as well upon the standards elaborated by controlling precedents and by the
Courts own understanding and interpretation of the Eighth Amendments text, history, meaning, and purpose. See id., at
797801, 102 S.Ct. 3368; Gregg, supra, at
182183, 96 S.Ct. 2909 (joint opinion of
Stewart, Powell, and STEVENS, JJ.);
Coker, supra, at 597600, 97 S.Ct. 2861
Based both on consensus and our own
independent judgment, our holding is that
a death sentence for one who raped but
Cite as 128 S.Ct. 2641 (2008)
did not kill a child, and who did not intend

to assist another in killing the child, is
unconstitutional under the Eighth and
Fourteenth Amendments.
III
A
The existence of objective indicia of consensus against making a crime punishable
by death was a relevant concern in Roper,
Atkins, Coker, and Enmund, and we follow
the approach of those cases here. The
history of the death penalty for the crime
of rape is an instructive beginning point.
In 1925, 18 States, the District of Columbia, and the Federal Government had
statutes that authorized the death penalty
for the rape of a child or an adult. See
Coker, supra, at 593, 97 S.Ct. 2861 (plurality opinion). Between 1930 and 1964, 455
people were executed for those crimes.
See 5 Historical Statistics of the United
States: Earliest Times to the Present, pp.
5262 to 5263 (S. Carter et al. eds. 2006)
(Table Ec343357). To our knowledge the
last individual executed for the rape of a
child was Ronald Wolfe in 1964. See H.
Frazier, Death Sentences in Missouri,
18032005: A History and Comprehensive
Registry of Legal Executions, Pardons,
and Commutations 143 (2006).
In 1972, Furman invalidated most of the
state statutes authorizing the death penalty for the crime of rape; and in Furmans
aftermath only six States reenacted their
capital rape provisions. Three States
Georgia, North Carolina, and Louisiana
did so with respect to all rape offenses.
Three StatesFlorida, Mississippi, and
Tennesseedid so with respect only to
child rape. See Coker, supra, at 594595,
97 S.Ct. 2861 (plurality opinion). All six
statutes were later invalidated under state
or federal law. See Coker, supra (striking
down Georgias capital rape statute);
2651

287, n. 6, 301305, 96 S.Ct. 2978, 49
L.Ed.2d 944 (1976) (plurality opinion)
(striking down North Carolinas mandatory death penalty statute); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49
L.Ed.2d 974 (1976) (striking down Louisianas mandatory death penalty statute);
Collins v. State, 550 S.W.2d 643, 646
(Tenn.1977) (striking down Tennessees
mandatory death penalty statute); Buford
v. State, 403 So.2d 943, 951 (Fla.1981)
(holding unconstitutional the imposition of
death for child rape); Leatherwood v.
State, 548 So.2d 389, 402403 (Miss.1989)
(striking down the death penalty for child
rape on state-law grounds).
Louisiana reintroduced the death penalty for rape of a child in 1995. See La.
Stat. Ann. 14:42 (West Supp.1996). Under the current statute, any anal, vaginal,
or oral intercourse with a child under the
age of 13 constitutes aggravated rape and
is punishable by death. See La. Stat. Ann.
14:42 (West Supp.2007). Mistake of age
is not a defense, so the statute imposes
strict liability in this regard. Five States
have since followed Louisianas lead:
Georgia, see Ga.Code Ann. 1661 (2007)
(enacted 1999); Montana, see Mont.Code
Ann. 455503 (2007) (enacted 1997);
Oklahoma, see Okla. Stat., Tit. 10,
7115(K) (West 2007 Supp.) (enacted
2006); South Carolina, see S.C.Code Ann.
163655(C)(1) (Supp.2007) (enacted
2006); and Texas, see Tex. Penal Code
Ann. 12.42(c)(3) (West Supp.2007) (enacted 2007); see also Tex. Penal Code
Ann. 22.021(a) (West Supp.2007). Four
of these States statutes are more narrow
than Louisianas in that only offenders
with a previous rape conviction are death
eligible. See Mont.Code Ann. 455
503(3)(c); Okla. Stat., Tit. 10, 7115(K);
S.C.Code Ann. 163655(C)(1); Tex. Penal Code Ann. 12.42(c)(3). Georgias
statute makes child rape a capital offense
2652
only when aggravating circumstances are

present, including but not limited to a prior conviction. See Ga.Code Ann. 1710
30 (Supp.2007).
By contrast, 44 States have not made
child rape a capital offense. As for federal
law, Congress in the Federal Death Penalty Act of 1994 expanded the number of
federal crimes for which the death penalty
is a permissible sentence, including certain
nonhomicide offenses; but it did not do the
same for child rape or abuse. See 108
Stat.1972 (codified as amended in scattered sections of 18 U.S.C.). Under 18
U.S.C. 2245, an offender is death eligible
only when the sexual abuse or exploitation
results in the victims death.
Petitioner claims the death penalty for
child rape is not authorized in Georgia,
pointing to a 1979 decision in which the
Supreme Court of Georgia stated that
[s]tatutory rape is not a capital crime in
Georgia. Presnell v. State, 243 Ga. 131,
132133, 252 S.E.2d 625, 626 (1979). But
it appears Presnell was referring to the
separate crime of statutory rape, which is
not a capital offense in Georgia, see Ga.
Code Ann. 262018 (1969); cf. Ga.Code.
Ann. 1663 (2007). The States current
capital rape statute, by contrast, is explicit
that the rape of [a] female who is less
than ten years of age is punishable by
death. Ga.Code Ann. 1661(a)(2), (b)
(2007). Based on a recent statement by
the Supreme Court of Georgia it must be
assumed that this law is still in force:
Neither the United States Supreme
Court, nor this Court, has yet addressed
whether the death penalty is unconstitutionally disproportionate for the crime of
raping a child. State v. Velazquez, 283
Ga. 206, 208, 657 S.E.2d 838, 840 (2008).
Respondent would include Florida
among those States that permit the death
penalty for child rape. The state statute
does authorize, by its terms, the death
penalty for sexual battery upon TTT a
person less than 12 years of age. Fla.
Stat. 794.011(2) (2007);

see also
921.141(5) (2007). In 1981, however, the
Supreme Court of Florida held the death
penalty for child sexual assault to be unconstitutional. See Buford, supra. It acknowledged that Coker addressed only the
constitutionality of the death penalty for
rape of an adult woman, 403 So.2d, at 950,
but held that [t]he reasoning of the justices in Coker TTT compels [the conclusion]
that a sentence of death is grossly disproportionate and excessive punishment for
the crime of sexual assault and is therefore
forbidden by the Eighth Amendment as
cruel and unusual punishment, id., at 951.
Respondent points out that the state statute has not since been amended. Pursuant to Fla. Stat. 775.082(2) (2007), however, Florida state courts have understood
Buford to bind their sentencing discretion
in child rape cases. See, e.g., Gibson v.
State, 721 So.2d 363, 367, and n. 2 (Fla.
App.1998) (deeming it irrelevant that the
Florida Legislature never changed the
wording of the sexual battery statute);
Cooper v. State, 453 So.2d 67 (Fla.App.
1984) (After Buford, death was no longer
a possible penalty in Florida for sexual
battery); see also Fla. Stat. 775.082(2)
(In the event the death penalty in a capital felony is held to be unconstitutional by
the Florida Supreme Court TTT the court
having jurisdiction over a person previously sentenced to death for a capital felony
TTT shall sentence such person to life imprisonment).
Definitive resolution of state-law issues
is for the States own courts, and there
may be disagreement over the statistics.
It is further true that some States, including States that have addressed the issue in
just the last few years, have made child
rape a capital offense. The summary recited here, however, does allow us to make
certain comparisons with the data cited in
the Atkins, Roper, and Enmund cases.
When Atkins was decided in 2002, 30
States, including 12 noncapital jurisdictions, prohibited the death penalty for
mentally retarded offenders; 20 permitted
Cite as 128 S.Ct. 2641 (2008)
it. See 536 U.S., at 313315, 122 S.Ct.

2242. When Roper was decided in 2005,
the numbers disclosed a similar division
among the States: 30 States prohibited
the death penalty for juveniles, 18 of which
permitted the death penalty for other offenders; and 20 States authorized it. See
543 U.S., at 564, 125 S.Ct. 1183. Both in
Atkins and in Roper, we noted that the
practice of executing mentally retarded
and juvenile offenders was infrequent.
Only five States had executed an offender
known to have an IQ below 70 between
1989 and 2002, see Atkins, supra, at 316,
122 S.Ct. 2242; and only three States had
executed a juvenile offender between 1995
and 2005, see Roper, supra, at 564565,
125 S.Ct. 1183.
The statistics in Enmund bear an even
greater similarity to the instant case.
There eight jurisdictions had authorized
imposition of the death penalty solely for
participation in a robbery during which an
accomplice committed murder, see 458
U.S., at 789, 102 S.Ct. 3368, and six defendants between 1954 and 1982 had been
sentenced to death for felony murder
where the defendant did not personally
commit the homicidal assault, id., at 794,
102 S.Ct. 3368. These facts, the Court
concluded, weigh[ed] on the side of rejecting capital punishment for the crime. Id.,
at 793, 102 S.Ct. 3368.
The evidence of a national consensus
with respect to the death penalty for child
rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but,
on balance, an opinion against it. Thirtyseven jurisdictions36 States plus the
Federal Governmenthave the death penalty. As mentioned above, only six of
those jurisdictions authorize the death
* When issued and announced on June 25,
2008, the Courts decision neither noted nor
discussed the military penalty for rape under
the Uniform Code of Military Justice. See 10
U.S.C. 856, 920; Manual for CourtsMartial, United States, Part IV, 45.f(1) (2008).
In a petition for rehearing respondent argues
2653
penalty for rape of a child. Though our

review of national consensus is not confined to tallying the number of States with
applicable death penalty legislation, it is of
significance that, in 45 jurisdictions, petitioner could not be executed for child rape
of any kind. That number surpasses the
30 States in Atkins and Roper and the 42
States in Enmund that prohibited the
death penalty under the circumstances
those cases considered.*
B
At least one difference between this case
and our Eighth Amendment proportionality precedents must be addressed. Respondent and its amici suggest that some
States have an erroneous understanding
of this Courts Eighth Amendment jurisprudence. Brief for Missouri Governor
Matt Blunt et al. as Amici Curiae 10.
They submit that the general propositions
set out in Coker, contrasting murder and
rape, have been interpreted in too expansive a way, leading some state legislatures
to conclude that Coker applies to child
rape when in fact its reasoning does not,
or ought not, apply to that specific crime.
This argument seems logical at first, but
in the end it is unsound. In Coker, a fourMember plurality of the Court, plus Justice Brennan and Justice Marshall in concurrence, held that a sentence of death for
the rape of a 16yearold woman, who was
a minor under Georgia law, see Ga.Code
Ann. 74104 (1973), yet was characterized by the Court as an adult, was disproportionate and excessive under the Eighth
Amendment. See 433 U.S., at 593600, 97
S.Ct. 2861; see also id., at 600, 97 S.Ct.
2861 (Brennan, J., concurring in judgment); ibid. (Marshall, J., concurring in
judgment). (The Court did not explain
that the military penalty bears on our consideration of the question in this case. For the
reasons set forth in the statement respecting
the denial of rehearing, post p. , we find
that the military penalty does not affect our
reasoning or conclusions.
2654
why the 16yearold victim qualified as an

adult, but it may be of some significance
that she was married, had a home of her
own, and had given birth to a son three
weeks prior to the rape. See Brief for
Petitioner in Coker v. Georgia, O.T.1976,
No. 755444, pp. 1415.)
The plurality noted that only one State
had a valid statute authorizing the death
penalty for adult rape and that in the vast
majority of cases, at least 9 out of 10,
juries ha[d] not imposed the death sentence. Coker, 433 U.S., at 597, 97 S.Ct.
2861; see also id., at 594, 97 S.Ct. 2861
(Of the 16 States in which rape had been
a capital offense, only three provided the
death penalty for rape of an adult woman
in their revised statutesGeorgia, North
Carolina, and Louisiana. In the latter two
States, the death penalty was mandatory
for those found guilty, and those laws were
invalidated by Woodson and Roberts ).
This history and TTT objective evidence of
the countrys present judgment concerning
the acceptability of death as a penalty for
rape of an adult woman, id., at 593, 97
S.Ct. 2861, confirmed the Courts independent judgment that punishing adult rape
by death was not proportional:
Rape is without doubt deserving of
serious punishment; but in terms of
moral depravity and of the injury to the
person and to the public, it does not
compare with murder, which does involve the unjustified taking of human
life. Although it may be accompanied
by another crime, rape by definition
does not include the death of TTT another person. The murderer kills; the rapist, if no more than that, does not TTT.
We have the abiding conviction that the
death penalty, which is unique in its
severity and irrevocability, Gregg v.
Georgia, 428 U.S., at 187, 96 S.Ct. 2909,
is an excessive penalty for the rapist
who, as such, does not take human life.
Id., at 598, 97 S.Ct. 2861 (footnote omitted).

Confined to this passage, Cokers analysis of the Eighth Amendment is susceptible of a reading that would prohibit
making child rape a capital offense. In
context, however, Cokers holding was
narrower than some of its language read
in isolation. The Coker plurality framed
the question as whether, with respect to
rape of an adult woman, the death penalty is disproportionate punishment. Id.,
at 592, 97 S.Ct. 2861. And it repeated
the phrase an adult woman or an
adult female in discussing the act of
rape or the victim of rape eight times in
its opinion. See Coker, supra. The distinction between adult and child rape was
not merely rhetorical; it was central to
the Courts reasoning. The opinion does
not speak to the constitutionality of the
death penalty for child rape, an issue not
then before the Court. In discussing the
legislative background, for example, the
Court noted:
Florida, Mississippi, and Tennessee
also authorized the death penalty in
some rape cases, but only where the
victim was a child and the rapist an
adult. The Tennessee statute has since
been invalidated because the death sentence was mandatory. The upshot is
that Georgia is the sole jurisdiction in
the United States at the present time
that authorizes a sentence of death when
the rape victim is an adult woman, and
only two other jurisdictions provide capital punishment when the victim is a child
TTT. [This] obviously weighs very heavily
on the side of rejecting capital punishment as a suitable penalty for raping an
adult woman. Id., at 595596, 97 S.Ct.
2861 (citation and footnote omitted).
Still, respondent contends, it is possible
that state legislatures have understood
Coker to state a broad rule that covers the
Cite as 128 S.Ct. 2641 (2008)
situation of the minor victim as well. We

see little evidence of this. Respondent
cites no reliable data to indicate that state
legislatures have read Coker to bar capital
punishment for child rape and, for this
reason, have been deterred from passing
applicable death penalty legislation. In
the absence of evidence from those States
where legislation has been proposed but
not enacted we refuse to speculate about
the motivations and concerns of particular
state legislators.
The position of the state courts, furthermore, to which state legislators look for
guidance on these matters, indicates that
Coker has not blocked the emergence of
legislative consensus. The state courts
that have confronted the precise question
before us have been uniform in concluding
that Coker did not address the constitutionality of the death penalty for the crime
of child rape. See, e.g., Wilson, 685 So.2d,
at 1066 (upholding the constitutionality of
the death penalty for rape of a child and
noting that [t]he plurality [in Coker ] took
great pains in referring only to the rape of
adult women throughout their opinion
(emphasis deleted)); Upshaw v. State, 350
So.2d 1358, 1360 (Miss.1977) (In Coker
the Court took great pains to limit its
decision to the applicability of the death
penalty for the rape of an adult woman
TTT. As we view Coker the Court carefully
refrained from deciding whether the death
penalty for the rape of a female child
under the age of twelve years is grossly
disproportionate to the crime). See also
Simpson v. Owens, 207 Ariz. 261, 268, n. 8,
85 P.3d 478, 485, n. 8 (App.2004) (addressing the denial of bail for sexual offenses
against children and noting that [a]lthough the death penalty was declared in a
plurality opinion of the United States Supreme Court to be a disproportionate punishment for the rape of an adult woman
TTT the rape of a child remains a capital
offense in some states); People v. Her-
2655
nandez, 30 Cal.4th 835, 869, 134 Cal.

Rptr.2d 602, 69 P.3d 446, 466 (2003) (addressing the death penalty for conspiracy
to commit murder and noting that the
constitutionality of laws imposing the
death penalty for crimes not necessarily
resulting in death is unresolved).
There is, to be sure, some contrary authority contained in various state-court
opinions. But it is either dicta, see State
v. Barnum, 921 So.2d 513, 526 (Fla.2005)
(addressing the retroactivity of Thompson
v. State, 695 So.2d 691 (Fla.1997)); State v.
Coleman, 185 Mont. 299, 327, 605 P.2d
1000, 1017 (1979) (upholding the defendants death sentence for aggravated kidnaping); State v. Gardner, 947 P.2d 630,
653 (Utah 1997) (addressing the constitutionality of the death penalty for prison
assaults); equivocal in its conclusion, see
People v. Huddleston, 212 Ill.2d 107, 141,
287 Ill.Dec. 560, 816 N.E.2d 322, 341342
(2004) (citing law review articles for the
proposition that the constitutionality of the
death penalty for nonhomicide crimes is
the subject of debate); or from a decision
of a state intermediate court that has been
superseded by a more specific statement of
the law by the States supreme court, compare, e.g., Parker v. State, 216 Ga.App.
649, 650, n. 1, 455 S.E.2d 360, 361, n. 1
(1995) (characterizing Coker as holding
that the death penalty is no longer permitted for rape where the victim is not
killed), with Velazquez, 283 Ga., at 208,
657 S.E.2d, at 840 ([T]he United States
Supreme Court TTT has yet [to] addres[s]
whether the death penalty is unconstitutionally disproportionate for the crime of
raping a child).
The Supreme Court of Floridas opinion
in Buford could be read to support respondents argument. But even there the state
court recognized that [t]he [Supreme]
Court has yet to decide whether [Cokers
rationale] holds true for the rape of a
2656
child and made explicit that it was extending the reasoning but not the holding
of Coker in striking down the death penalty for child rape. 403 So.2d, at 950, 951.
The same is true of the Supreme Court of
Californias opinion in Hernandez, supra,
at 867, 134 Cal.Rptr.2d 602, 69 P.3d, at
464.
We conclude on the basis of this review
that there is no clear indication that state
legislatures have misinterpreted Coker to
hold that the death penalty for child rape
is unconstitutional. The small number of
States that have enacted this penalty,
then, is relevant to determining whether
there is a consensus against capital punishment for this crime.
C
Respondent insists that the six States
where child rape is a capital offense, along
with the States that have proposed but not
yet enacted applicable death penalty legislation, reflect a consistent direction of
change in support of the death penalty for
child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. See Atkins, 536 U.S., at
315, 122 S.Ct. 2242 (It is not so much the
number of these States that is significant,
but the consistency of the direction of
change); Roper, 543 U.S., at 565, 125
S.Ct. 1183 (Impressive in Atkins was the
rate of abolition of the death penalty for
the mentally retarded). But whatever
the significance of consistent change where
it is cited to show emerging support for
expanding the scope of the death penalty,
no showing of consistent change has been
made in this case.
Respondent and its amici identify five
States where, in their view, legislation authorizing capital punishment for child rape
is pending. See Brief for Missouri Governor Matt Blunt et al. as Amici Curiae 2,
14. It is not our practice, nor is it sound,
to find contemporary norms based upon

state legislation that has been proposed
but not yet enacted. There are compelling
reasons not to do so here. Since the briefs
were submitted by the parties, legislation
in two of the five States has failed. See,
e.g., S. 195, 66th Gen. Assembly, 2d Reg.
Sess. (Colo.2008) (rejected by Senate Appropriations Committee on Apr. 11, 2008);
S. 2596, 2008 Leg., Reg. Sess. (Miss.2008)
(rejected by House Committee on Mar. 18,
2008). In Tennessee, the house bills were
rejected almost a year ago, and the senate
bills appear to have died in committee.
See H.R. 601, 105th Gen. Assembly, 1st
Reg. Sess. (2007) (taken off Subcommittee
Calendar on Apr. 4, 2007); H.R. 662, ibid.
(failed for lack of second on Mar. 21, 2007);
H.R. 1099, ibid. (taken off notice for Judiciary Committee calendar on May 16,
2007); S. 22, ibid. (referred to General
Subcommittee of Senate Finance, Ways,
and Means Committee on June 11, 2007);
S. 157, ibid. (referred to Senate Judiciary
Committee on Feb. 7, 2007; action deferred until Jan. 2008); S. 841, ibid. (referred to General Subcommittee of Senate
Judiciary Committee on Mar. 27, 2007).
In Alabama, the recent legislation is similar to a bill that failed in 2007. Compare
H.R. 456, 2008 Leg., Reg. Sess. (2008),
with H.R. 335, 2007 Leg., Reg. Sess.
(2007). And in Missouri, the 2008 legislative session has ended, tabling the pending
legislation. See Mo. Const., Art. III,
20(a).
Aside from pending legislation, it is true
that in the last 13 years there has been
change towards making child rape a capital offense. This is evidenced by six new
death penalty statutes, three enacted in
the last two years. But this showing is not
as significant as the data in Atkins, where
18 States between 1986 and 2001 had enacted legislation prohibiting the execution
of mentally retarded persons. See Atkins,
Cite as 128 S.Ct. 2641 (2008)
supra, at 313315, 122 S.Ct. 2242. Respondent argues the instant case is like
Roper because, there, only five States had
shifted their positions between 1989 and
2005, one less State than here. See Roper,
supra, at 565, 125 S.Ct. 1183. But in
Roper, we emphasized that, though the
pace of abolition was not as great as in
Atkins, it was counterbalanced by the total
number of States that had recognized the
impropriety of executing juvenile offenders. See 543 U.S., at 566567, 125 S.Ct.
1183. When we decided Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106
L.Ed.2d 306 (1989), 12 death penalty
States already prohibited the execution of
any juvenile under 18, and 15 prohibited
the execution of any juvenile under 17.
See Roper, supra, at 566567, 125 S.Ct.
1183 (If anything, this shows that the
impropriety of executing juveniles between
16 and 18 years of age gained wide recognition earlier). Here, the total number of
States to have made child rape a capital
offense after Furman is six. This is not
an indication of a trend or change in direction comparable to the one supported
by data in Roper. The evidence here
bears a closer resemblance to the evidence
of state activity in Enmund, where we
found a national consensus against the
death penalty for vicarious felony murder
despite eight jurisdictions having authorized the practice. See 458 U.S., at 789,
792, 102 S.Ct. 3368.
D
There are measures of consensus other
than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the
crime of child rape is regarded as unacceptable in our society. See, e.g., id., at
794795, 102 S.Ct. 3368; Roper, supra, at
564565, 125 S.Ct. 1183; Atkins, supra, at
316, 122 S.Ct. 2242; Cf. Coker, 433 U.S., at
596597, 97 S.Ct. 2861 (plurality opinion).
2657
These statistics confirm our determination

from our review of state statutes that
there is a social consensus against the
death penalty for the crime of child rape.
Nine StatesFlorida, Georgia, Louisiana, Mississippi, Montana, Oklahoma,
South Carolina, Tennessee, and Texas
have permitted capital punishment for
adult or child rape for some length of time
between the Courts 1972 decision in Furman and today. See supra, at 2651; Coker, supra, at 595, 97 S.Ct. 2861 (plurality
opinion). Yet no individual has been executed for the rape of an adult or child
since 1964, and no execution for any other
nonhomicide offense has been conducted
since 1963. See Historical Statistics of the
United States, at 5262 to 5263 (Table
Ec343357). Cf. Thompson v. Oklahoma,
487 U.S. 815, 852853, 108 S.Ct. 2687, 101
L.Ed.2d 702 (1988) (OConnor, J., concurring in judgment) (that four decades have
gone by since the last execution of a defendant who was younger than 16 at the time
of the offense TTT support[s] the inference
of a national consensus opposing the death
penalty for 15yearolds).
Louisiana is the only State since 1964
that has sentenced an individual to death
for the crime of child rape; and petitioner
and Richard Davis, who was convicted and
sentenced to death for the aggravated rape
of a 5yearold child by a Louisiana jury
in December 2007, see State v. Davis, Case
No. 262,971 (1st Jud. Dist., Caddo Parish,
La.) (cited in Brief for Respondent 42, and
n. 38), are the only two individuals now on
death row in the United States for a nonhomicide offense.
After reviewing the authorities informed
by contemporary norms, including the history of the death penalty for this and other
nonhomicide crimes, current state statutes
and new enactments, and the number of
executions since 1964, we conclude there is
2658
a national consensus against capital punishment for the crime of child rape.
IV
A
As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment
for child rape is entitled to great weight,
but it does not end our inquiry. [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, supra, at 597, 97 S.Ct. 2861
(plurality opinion); see also Roper, supra,
at 563, 125 S.Ct. 1183; Enmund, supra, at
797, 102 S.Ct. 3368 ([I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty). We turn, then, to the resolution of
the question before us, which is informed
by our precedents and our own understanding of the Constitution and the rights
it secures.
It must be acknowledged that there are
moral grounds to question a rule barring
capital punishment for a crime against an
individual that did not result in death.
These facts illustrate the point. Here the
victims fright, the sense of betrayal, and
the nature of her injuries caused more
prolonged physical and mental suffering
than, say, a sudden killing by an unseen
assassin. The attack was not just on her
but on her childhood. For this reason, we
should be most reluctant to rely upon the
language of the plurality in Coker, which
posited that, for the victim of rape, life
may not be nearly so happy as it was but
it is not beyond repair. 433 U.S., at 598,
97 S.Ct. 2861. Rape has a permanent
psychological, emotional, and sometimes
physical impact on the child. See C. Bagley & K. King, Child Sexual Abuse: The
Search for Healing 224, 111112 (1990);
Finkelhor & Browne, Assessing the Long

Term Impact of Child Sexual Abuse: A
Review and Conceptualization in Handbook on Sexual Abuse of Children 5560
(L. Walker ed.1988). We cannot dismiss
the years of long anguish that must be
endured by the victim of child rape.
It does not follow, though, that capital
punishment is a proportionate penalty for
the crime. The constitutional prohibition
against excessive or cruel and unusual
punishments mandates that the States
power to punish be exercised within the
limits of civilized standards. Trop, 356
U.S., at 99, 100, 78 S.Ct. 590 (plurality
opinion). Evolving standards of decency
that mark the progress of a maturing society counsel us to be most hesitant before
interpreting the Eighth Amendment to allow the extension of the death penalty, a
hesitation that has special force where no
life was taken in the commission of the
crime. It is an established principle that
decency, in its essence, presumes respect
for the individual and thus moderation or
restraint in the application of capital punishment. See id., at 100, 78 S.Ct. 590.
To date the Court has sought to define
and implement this principle, for the most
part, in cases involving capital murder.
One approach has been to insist upon general rules that ensure consistency in determining who receives a death sentence.
See California v. Brown, 479 U.S. 538,
541, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987)
([D]eath penalty statutes [must] be structured so as to prevent the penalty from
being administered in an arbitrary and
unpredictable fashion (citing Gregg, 428
U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859;
Furman, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346)); Godfrey v. Georgia, 446
U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d
398 (1980) (plurality opinion) (requiring a
State to give narrow and precise definition
to the aggravating factors that warrant its
Cite as 128 S.Ct. 2641 (2008)
imposition). At the same time the Court

has insisted, to ensure restraint and moderation in use of capital punishment, on
judging the character and record of the
individual offender and the circumstances
of the particular offense as a constitutionally indispensable part of the process of
inflicting the penalty of death. Woodson,
opinion); Lockett v. Ohio, 438 U.S. 586,
604605, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978) (plurality opinion).
The tension between general rules and
case-specific circumstances has produced
results not all together satisfactory. See
Tuilaepa v. California, 512 U.S. 967, 973,
114 S.Ct. 2630, 129 L.Ed.2d 750 (1994)
(The objectives of these two inquiries can
be in some tension, at least when the
inquiries occur at the same time); Walton
v. Arizona, 497 U.S. 639, 664665, 110
S.Ct. 3047, 111 L.Ed.2d 511 (1990) (SCALIA, J., concurring in part and concurring
in judgment) (The latter requirement
quite obviously destroys whatever rationality and predictability the former requirement was designed to achieve). This has
led some Members of the Court to say we
should cease efforts to resolve the tension
and simply allow legislatures, prosecutors,
courts, and juries greater latitude. See
id., at 667673, 110 S.Ct. 3047 (advocating
that the Court adhere to the Furman line
of cases and abandon the Woodson-Lockett
line of cases). For others the failure to
limit these same imprecisions by stricter
enforcement of narrowing rules has raised
doubts concerning the constitutionality of
capital punishment itself. See Baze v.
Rees, 553 U.S. , , 128 S.Ct.
1520, 15321534, 170 L.Ed.2d 420 (2008)
(STEVENS, J., concurring in judgment);
Furman, supra, at 310314, 92 S.Ct. 2726
(White, J., concurring); Callins v. Collins,
510 U.S. 1141, 11441145, 114 S.Ct. 1127,
127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari).
2659
Our response to this case law, which is

still in search of a unifying principle, has
been to insist upon confining the instances
in which capital punishment may be imposed. See Gregg, supra, at 187, 184, 96
S.Ct. 2909 (joint opinion of Stewart, Powell, and STEVENS, JJ.) (because death
as a punishment is unique in its severity
and irrevocability, capital punishment
must be reserved for those crimes that are
so grievous an affront to humanity that
the only adequate response may be the
penalty of death (citing in part Furman,
408 U.S., at 286291, 92 S.Ct. 2726 (Brennan, J., concurring); id., at 306, 92 S.Ct.
2726 (Stewart, J., concurring))); see also
Roper, 543 U.S., at 569, 125 S.Ct. 1183 (the
Eighth Amendment requires that the
death penalty is reserved for a narrow
category of crimes and offenders).
Our concern here is limited to crimes
against individual persons. We do not address, for example, crimes defining and
punishing treason, espionage, terrorism,
and drug kingpin activity, which are offenses against the State. As it relates to
crimes against individuals, though, the
death penalty should not be expanded to
instances where the victims life was not
taken. We said in Coker of adult rape:
We do not discount the seriousness
of rape as a crime. It is highly reprehensible, both in a moral sense and in its
almost total contempt for the personal
integrity and autonomy of the female
victim TTTT Short of homicide, it is the
ultimate violation of self. TTT [But]
[t]he murderer kills; the rapist, if no
more than that, does notTTTT We have
the abiding conviction that the death
penalty, which is unique in its severity
and irrevocability, is an excessive penalty for the rapist who, as such, does not
take human life. 433 U.S., at 597598,
2660
97 S.Ct. 2861 (plurality opinion) (citation

omitted).
The same distinction between homicide
and other serious violent offenses against
the individual informed the Courts analysis in Enmund, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140, where the Court
held that the death penalty for the crime
of vicarious felony murder is disproportionate to the offense. The Court repeated there the fundamental, moral distinction between a murderer and a
robber, noting that while robbery is a
serious crime deserving serious punishment, it is not like death in its severity
and irrevocability. Id., at 797, 102 S.Ct.
Consistent with evolving standards of
decency and the teachings of our precedents we conclude that, in determining
whether the death penalty is excessive,
there is a distinction between intentional
first-degree murder on the one hand and
nonhomicide crimes against individual persons, even including child rape, on the
other. The latter crimes may be devastating in their harm, as here, but in terms of
moral depravity and of the injury to the
person and to the public, Coker, 433 U.S.,
at 598, 97 S.Ct. 2861 (plurality opinion),
they cannot be compared to murder in
their severity and irrevocability. Ibid.
In reaching our conclusion we find significant the number of executions that
would be allowed under respondents approach. The crime of child rape, considering its reported incidents, occurs more
often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or
oral rape of a child under the age of 12
were reported nationwide in 2005; this is
almost twice the total incidents of intentional murder for victims of all ages
(3,405) reported during the same period.
See InterUniversity Consortium for Political and Social Research, National Inci-
dentBased Reporting System, 2005,

Study No. 4720, http://www.icpsr.umich.
edu (as visited June 12, 2008, and available in Clerk of Courts case file). Although we have no reliable statistics on
convictions for child rape, we can surmise
that, each year, there are hundreds, or
more, of these convictions just in jurisdictions that permit capital punishment. Cf.
Brief for Louisiana Association of Criminal Defense Lawyers et al. as Amici Curiae 12, and n. 2 (noting that there are
now at least 70 capital rape indictments
pending in Louisiana and estimating the
actual number to be over 100). As a result of existing rules, see generally Godfrey, 446 U.S., at 428433, 100 S.Ct. 1759
(plurality opinion), only 2.2% of convicted
first-degree murderers are sentenced to
death, see Blume, Eisenberg, & Wells,
Explaining Death Rows Population and
Racial Composition, 1 J. of Empirical Legal Studies 165, 171 (2004). But under
respondents approach, the 36 States that
permit the death penalty could sentence
to death all persons convicted of raping a
child less than 12 years of age. This
could not be reconciled with our evolving
standards of decency and the necessity to
constrain the use of the death penalty.
It might be said that narrowing aggravators could be used in this context, as
with murder offenses, to ensure the death
penaltys restrained application. We find
it difficult to identify standards that would
guide the decisionmaker so the penalty is
reserved for the most severe cases of child
rape and yet not imposed in an arbitrary
way. Even were we to forbid, say, the
execution of first-time child rapists, see
supra at 2651, or require as an aggravating factor a finding that the perpetrators
instant rape offense involved multiple victims, the jury still must balance, in its
discretion, those aggravating factors
against mitigating circumstances. In this
2661
Cite as 128 S.Ct. 2641 (2008)
context, which involves a crime that in

many cases will overwhelm a decent persons judgment, we have no confidence
that the imposition of the death penalty
would not be so arbitrary as to be freakis[h], Furman, 408 U.S., at 310, 92 S.Ct.
2726 (Stewart, J., concurring). We cannot
sanction this result when the harm to the
victim, though grave, cannot be quantified
in the same way as death of the victim.
It is not a solution simply to apply to
this context the aggravating factors developed for capital murder. The Court has
said that a State may carry out its obligation to ensure individualized sentencing
in capital murder cases by adopting sentencing processes that rely upon the jury
to exercise wide discretion so long as there
are narrowing factors that have some
common-sense core of meaning TTT that
criminal juries should be capable of understanding. Tuilaepa, 512 U.S., at 975,
114 S.Ct. 2630 (quoting Jurek v. Texas, 428
U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d
929 (1976) (White, J., concurring in judgment)). The Court, accordingly, has upheld the constitutionality of aggravating
factors ranging from whether the defendant was a cold-blooded, pitiless slayer, Arave v. Creech, 507 U.S. 463, 471
474, 113 S.Ct. 1534, 123 L.Ed.2d 188
(1993), to whether the perpetrator inflict[ed] mental anguish or physical abuse
before the victims death, Walton, 497
U.S., at 654, 110 S.Ct. 3047, to whether the
defendant would commit criminal acts of
violence that would constitute a continuing
threat to society, Jurek, supra, at 269
270, 274276, 96 S.Ct. 2950 (joint opinion of
Stewart, Powell, and STEVENS, JJ.). All
of these standards have the potential to
result in some inconsistency of application.
As noted above, the resulting imprecision and the tension between evaluating
the individual circumstances and consistency of treatment have been tolerated where
the victim dies. It should not be introduced into our justice system, though,
where death has not occurred.
Our concerns are all the more pronounced where, as here, the death penalty
for this crime has been most infrequent.
See Part IIID, supra. We have developed a foundational jurisprudence in the
case of capital murder to guide the States
and juries in imposing the death penalty.
Starting with Gregg, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2d 859, we have spent more
than 32 years articulating limiting factors
that channel the jurys discretion to avoid
the death penaltys arbitrary imposition in
the case of capital murder. Though that
practice remains sound, beginning the
same process for crimes for which no one
has been executed in more than 40 years
would require experimentation in an area
where a failed experiment would result in
the execution of individuals undeserving of
the death penalty. Evolving standards of
decency are difficult to reconcile with a
regime that seeks to expand the death
penalty to an area where standards to
confine its use are indefinite and obscure.
B
Our decision is consistent with the justifications offered for the death penalty.
Gregg instructs that capital punishment is
excessive when it is grossly out of proportion to the crime or it does not fulfill the
two distinct social purposes served by the
death penalty: retribution and deterrence
of capital crimes. See id., at 173, 183, 187,
96 S.Ct. 2909 (joint opinion of Stewart,
Powell, and STEVENS, JJ.); see also Coker, 433 U.S., at 592, 97 S.Ct. 2861 (plurality
opinion) (A punishment might fail the test
on either ground).
As in Coker, here it cannot be said with
any certainty that the death penalty for
child rape serves no deterrent or retributive function. See id., at 593, n. 4, 97 S.Ct.
2662
2861 (concluding that the death penalty for

rape might serve legitimate ends of punishment but nevertheless is disproportionate to the crime). Cf. Gregg, supra, at
185186, 96 S.Ct. 2909 (joint opinion of
Stewart, Powell, and STEVENS, JJ.)
([T]here is no convincing empirical evidence either supporting or refuting th[e]
view [that the death penalty serves as a
significantly greater deterrent than lesser
penalties]. We may nevertheless assume
safely that there are murderers TTT for
whom TTT the death penalty undoubtedly
is a significant deterrent); id., at 186, 96
S.Ct. 2909 (the value of capital punishment, and its contribution to acceptable
penological goals, typically is a complex
factual issue the resolution of which properly rests with the legislatures). This
argument does not overcome other objections, however. The incongruity between
the crime of child rape and the harshness
of the death penalty poses risks of overpunishment and counsels against a constitutional ruling that the death penalty can
be expanded to include this offense.
The goal of retribution, which reflects
societys and the victims interests in seeing that the offender is repaid for the hurt
he caused, see Atkins, 536 U.S., at 319, 122
S.Ct. 2242; Furman, supra, at 308, 92
S.Ct. 2726 (Stewart, J., concurring), does
not justify the harshness of the death penalty here. In measuring retribution, as
well as other objectives of criminal law, it
is appropriate to distinguish between a
particularly depraved murder that merits
death as a form of retribution and the
crime of child rape. See Part IVA, supra ; Coker, supra, at 597598, 97 S.Ct.
2861 (plurality opinion).
There is an additional reason for our
conclusion that imposing the death penalty
for child rape would not further retributive
purposes. In considering whether retribution is served, among other factors we
have looked to whether capital punishment

has the potential TTT to allow the community as a whole, including the surviving
family and friends of the victim, to affirm
its own judgment that the culpability of
the prisoner is so serious that the ultimate
penalty must be sought and imposed.
Panetti v. Quarterman, 551 U.S. ,
, 127 S.Ct. 2842, 2847, 168 L.Ed.2d 662
(2007). In considering the death penalty
for nonhomicide offenses this inquiry necessarily also must include the question
whether the death penalty balances the
wrong to the victim. Cf. Roper, 543 U.S.,
at 571, 125 S.Ct. 1183.
It is not at all evident that the child rape
victims hurt is lessened when the law
permits the death of the perpetrator.
Capital cases require a long-term commitment by those who testify for the prosecution, especially when guilt and sentencing
determinations are in multiple proceedings. In cases like this the key testimony
is not just from the family but from the
victim herself. During formative years of
her adolescence, made all the more daunting for having to come to terms with the
brutality of her experience, L.H. was required to discuss the case at length with
law enforcement personnel. In a public
trial she was required to recount once
more all the details of the crime to a jury
as the State pursued the death of her
stepfather. Cf. G. Goodman et al., Testifying in Criminal Court: Emotional Effects
on Child Sexual Assault Victims 50, 62, 72
(1992); Brief for National Association of
Social Workers et al. as Amici Curiae 17
21. And in the end the State made L.H. a
central figure in its decision to seek the
death penalty, telling the jury in closing
statements: [L. H.] is asking you, asking
you to set up a time and place when he
dies. Tr. 121 (Aug. 26, 2003).
Societys desire to inflict the death penalty for child rape by enlisting the child
Cite as 128 S.Ct. 2641 (2008)
victim to assist it over the course of years

in asking for capital punishment forces a
moral choice on the child, who is not of
mature age to make that choice. The way
the death penalty here involves the child
victim in its enforcement can compromise
a decent legal system; and this is but a
subset of fundamental difficulties capital
punishment can cause in the administration and enforcement of laws proscribing
child rape.
There are, moreover, serious systemic
concerns in prosecuting the crime of child
rape that are relevant to the constitutionality of making it a capital offense. The
problem of unreliable, induced, and even
imagined child testimony means there is a
special risk of wrongful execution in
some child rape cases. Atkins, supra, at
321, 122 S.Ct. 2242. See also Brief for
National Association of Criminal Defense
Lawyers et al. as Amici Curiae 517.
This undermines, at least to some degree,
the meaningful contribution of the death
penalty to legitimate goals of punishment.
Studies conclude that children are highly
susceptible to suggestive questioning techniques like repetition, guided imagery, and
selective reinforcement.
See Ceci &
Friedman, The Suggestibility of Children:
Scientific Research and Legal Implications, 86 Cornell L.Rev. 33, 47 (2000)
(there is strong evidence that children,
especially young children, are suggestible
to a significant degreeeven on abuserelated questions); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in
the United States 1989 Through 2003, 95
J.Crim. L. & C. 523, 539 (2005) (discussing
allegations of abuse at the Little Rascals
Day Care Center); see also Quas, Davis,
Goodman, & Myers, Repeated Questions,
Deception, and Childrens True and False
Reports of Body Touch, 12 Child Maltreatment 60, 6166 (2007) (finding that 4 to 7
yearolds were able to maintain [a] lie
about body touch fairly effectively when
2663
asked repeated, direct questions during a

mock forensic interview).
Similar criticisms pertain to other cases
involving child witnesses; but child rape
cases present heightened concerns because
the central narrative and account of the
crime often comes from the child herself.
She and the accused are, in most instances, the only ones present when the crime
was committed. See Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 94
L.Ed.2d 40 (1987). Cf. Goodman, Testifying in Criminal Court, at 118. And the
question in a capital case is not just the
fact of the crime, including, say, proof of
rape as distinct from abuse short of rape,
but details bearing upon brutality in its
commission. These matters are subject to
fabrication or exaggeration, or both. See
Ceci and Friedman, supra; Quas, supra.
Although capital punishment does bring
retribution, and the legislature here has
chosen to use it for this end, its judgment
must be weighed, in deciding the constitutional question, against the special risks of
unreliable testimony with respect to this
crime.
With respect to deterrence, if the death
penalty adds to the risk of non-reporting,
that, too, diminishes the penaltys objectives. Underreporting is a common problem with respect to child sexual abuse.
See Hanson, Resnick, Saunders, Kilpatrick, & Best, Factors Related to the Reporting of Childhood Rape, 23 Child Abuse
& Neglect 559, 564 (1999) (finding that
about 88% of female rape victims under
the age of 18 did not disclose their abuse
to authorities); Smith et al., Delay in Disclosure of Childhood Rape: Results From
A National Survey, 24 Child Abuse & Neglect 273, 278279 (2000) (finding that 72%
of women raped as children disclosed their
abuse to someone, but that only 12% of the
victims reported the rape to authorities).
Although we know little about what differ-
2664
entiates those who report from those who

do not report, see Hanson, supra, at 561,
one of the most commonly cited reasons
for nondisclosure is fear of negative consequences for the perpetrator, a concern that
has special force where the abuser is a
family member, see GoodmanBrown,
Edelstein, Goodman, Jones, & Gordon,
Why Children Tell: A Model of Childrens
Disclosure of Sexual Abuse, 27 Child
Abuse & Neglect 525, 527528 (2003);
Smith, supra, at 283284 (finding that,
where there was a relationship between
perpetrator and victim, the victim was likely to keep the abuse a secret for a longer
period of time, perhaps because of a
greater sense of loyalty or emotional
bond); Hanson, supra, at 565566, and
Table 3 (finding that a significantly greater proportion of reported than nonreported cases involved a stranger); see also
Ritchie, supra, at 60. The experience of
the amici who work with child victims
indicates that, when the punishment is
death, both the victim and the victims
family members may be more likely to
shield the perpetrator from discovery, thus
increasing underreporting. See Brief for
National Association of Social Workers et
al. as Amici Curiae 1113. As a result,
punishment by death may not result in
more deterrence or more effective enforcement.
In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by
death may remove a strong incentive for
the rapist not to kill the victim. Assuming
the offender behaves in a rational way, as
one must to justify the penalty on grounds
of deterrence, the penalty in some respects
gives less protection, not more, to the victim, who is often the sole witness to the
crime. See Rayburn, Better Dead Than
R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. Johns
L.Rev. 1119, 11591160 (2004). It might
be argued that, even if the death penalty

results in a marginal increase in the incentive to kill, this is counterbalanced by a
marginally increased deterrent to commit
the crime at all. Whatever balance the
legislature strikes, however, uncertainty
on the point makes the argument for the
penalty less compelling than for homicide
crimes.
Each of these propositions, standing
alone, might not establish the unconstitutionality of the death penalty for the crime
of child rape. Taken in sum, however,
they demonstrate the serious negative consequences of making child rape a capital
offense. These considerations lead us to
conclude, in our independent judgment,
that the death penalty is not a proportional
punishment for the rape of a child.
V
Our determination that there is a consensus against the death penalty for child
rape raises the question whether the
Courts own institutional position and its
holding will have the effect of blocking
further or later consensus in favor of the
penalty from developing. The Court, it
will be argued, by the act of addressing
the constitutionality of the death penalty,
intrudes upon the consensus-making process. By imposing a negative restraint,
the argument runs, the Court makes it
more difficult for consensus to change or
emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that
which it judges.
These concerns overlook the meaning
and full substance of the established proposition that the Eighth Amendment is defined by the evolving standards of decency that mark the progress of a maturing
society. Trop, 356 U.S., at 101, 78 S.Ct.
590 (plurality opinion). Confirmed by re-
2665
Cite as 128 S.Ct. 2641 (2008)
peated, consistent rulings of this Court,

this principle requires that use of the
death penalty be restrained. The rule of
evolving standards of decency with specific
marks on the way to full progress and
mature judgment means that resort to the
penalty must be reserved for the worst of
crimes and limited in its instances of application. In most cases justice is not better
served by terminating the life of the
perpetrator rather than confining him and
preserving the possibility that he and the
system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to
ensure against its arbitrary and capricious
application require adherence to a rule
reserving its use, at this stage of evolving
standards and in cases of crimes against
individuals, for crimes that take the life of
the victim.
The judgment of the Supreme Court of
Louisiana upholding the capital sentence is
reversed. This case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
Justice ALITO, with whom THE
CHIEF JUSTICE, Justice SCALIA, and
Justice THOMAS join, dissenting.
The Court today holds that the Eighth
Amendment categorically prohibits the imposition of the death penalty for the crime
of raping a child. This is so, according to
the Court, no matter how young the child,
no matter how many times the child is
raped, no matter how many children the
perpetrator rapes, no matter how sadistic
the crime, no matter how much physical or
psychological trauma is inflicted, and no
matter how heinous the perpetrators prior
criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified a national consensus that the death
penalty is never acceptable for the rape of

a child; second, the Court concludes,
based on its independent judgment, that
imposing the death penalty for child rape
is inconsistent with the evolving standards of decency that mark the progress
of a maturing society. Ante, at 2649,
2653, 2654 (citation omitted). Because neither of these justifications is sound, I respectfully dissent.
I
A
I turn first to the Courts claim that
there is a national consensus that it is
never acceptable to impose the death penalty for the rape of a child. The Eighth
Amendments requirements, the Court
writes, are determined not by the standards that prevailed when the Amendment was adopted but by the norms that
currently prevail. Ante, at 2649 (quoting Atkins v. Virginia, 536 U.S. 304, 311,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)).
In assessing current norms, the Court relies primarily on the fact that only 6 of the
50 States now have statutes that permit
the death penalty for this offense. But
this statistic is a highly unreliable indicator
of the views of state lawmakers and their
constituents. As I will explain, dicta in
this Courts decision in Coker v. Georgia,
433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982
(1977), has stunted legislative consideration of the question whether the death
penalty for the targeted offense of raping
a young child is consistent with prevailing
standards of decency. The Coker dicta
gave state legislators and others good reason to fear that any law permitting the
imposition of the death penalty for this
crime would meet precisely the fate that
has now befallen the Louisiana statute that
is currently before us, and this threat
strongly discouraged state legislatorsregardless of their own values and those of
2666
their constituentsfrom supporting the

enactment of such legislation.
As the Court correctly concludes, the
holding in Coker was that the Eighth
Amendment prohibits the death penalty
for the rape of an adult woman, and
thus Coker does not control our decision
here. See ante, at 2654. But the reasoning of the Justices in the majority had
broader implications.
Two Members of the Coker majority,
Justices Brennan and Marshall, took the
position that the death penalty is always
unconstitutional. 433 U.S., at 600, 97 S.Ct.
2861 (Brennan, J., concurring in judgment)
and (Marshall, J., concurring in judgment).
Four other Justices, who joined the controlling plurality opinion, suggested that
the Georgia capital rape statute was unconstitutional for the simple reason that
the impact of a rape, no matter how heinous, is not grievous enough to justify
capital punishment. In the words of the
plurality: Life is over for the victim of
the murderer; for the rape victim, life may
not be nearly so happy as it was, but it is
not over and normally is not beyond repair. Id., at 598, 97 S.Ct. 2861. The
plurality summarized its position as follows: We have the abiding conviction that
the death penalty TTT is an excessive penalty for the rapist who, as such, does not
take human life. Ibid.
The implications of the Coker plurality
opinion were plain. Justice Powell, who
concurred in the judgment overturning the
death sentence in the case at hand, did not
join the plurality opinion because he understood it to draw a bright line between
murder and all rapesregardless of the
degree of brutality of the rape or the effect
upon the victim. Id., at 603, 97 S.Ct.
2861. If Justice Powell read Coker that
way, it was reasonable for state legislatures to do the same.
Understandably, state courts have frequently read Coker in precisely this way.
The Court is correct that state courts have
generally understood the limited scope of
the holding in Coker, ante, at 2654 2655,
but lower courts and legislators also take
into accountand I presume that this
Court wishes them to continue to take into
accountthe Courts dicta. And that is
just what happened in the wake of Coker.
Four years after Coker, when Floridas
capital child rape statute was challenged,
the Florida Supreme Court, while correctly noting that this Court had not held that
the Eighth Amendment bars the death
penalty for child rape, concluded that
[t]he reasoning of the justices in Coker v.
Georgia compels us to hold that a sentence
of death is grossly disproportionate and
excessive punishment for the crime of sexual assault and is therefore forbidden by
the Eighth Amendment as cruel and unusual punishment. Buford v. State, 403
So.2d 943, 951 (1981).
Numerous other state courts have interpreted the Coker dicta similarly. See
State v. Barnum, 921 So.2d 513, 526 (Fla.
2005) (citing Coker as holding that a
sentence of death is grossly disproportionate and excessive punishment for the
crime of rape, not merely the rape of an
adult woman); People v. Huddleston, 212
Ill.2d 107, 141, 287 Ill.Dec. 560, 816 N.E.2d
322, 341 (2004) (recognizing that the constitutionality of state statutes that impose
the death penalty for nonhomicide crimes
is the subject of debate after Coker );
People v. Hernandez, 30 Cal.4th 835, 867,
134 Cal.Rptr.2d 602, 69 P.3d 446, 464467
(2003) (Coker rais[ed] serious doubts that
the federal Constitution permitted the
death penalty for any offense not requiring
the actual taking of human life because
[a]lthough the high court did not expressly hold [in Coker ] that the Eighth Amendment prohibits capital punishment for all
crimes not resulting in death, the plurality
Cite as 128 S.Ct. 2641 (2008)
2667
stressed that the crucial difference between rape and murder is that a rapist
does not take human life ); State v.
Gardner, 947 P.2d 630, 653 (Utah 1997)
(The Coker holding leaves no room for the
conclusion that any rape, even an inhuman one involving torture and aggravated
battery but not resulting in death, would
constitutionally sustain imposition of the
death penalty); Parker v. State, 216 Ga.
App. 649, n. 1, 455 S.E.2d 360, 361, n. 1
(1995) (citing Coker for the proposition
that the death penalty is no longer permitted for rape where the victim is not
killed); Leatherwood v. State, 548 So.2d
389, 406 (Miss.1989) (Robertson, J., concurring) (There is as much chance of the
Supreme Court sanctioning death as a
penalty for any non-fatal rape as the proverbial snowball enjoys in the nether regions); State v. Coleman, 185 Mont. 299,
327328, 605 P.2d 1000, 1017 (1979) (stating that [t]he decision of the Court in
Coker v. Georgia is relevant only to crimes
for which the penalty has been imposed
which did not result in the loss of a life
(citations omitted)); Boyer v. State, 240
Ga. 170, 240 S.E.2d 68 (1977) (per curiam)
(stating that [s]ince death to the victim

did not result TTT the death penalty for
rape must be set aside); see also 2005
1981 (La.Sup.Ct.5/22/07), 957 So.2d 757,
794 (case below) (Calogero, C.J., dissenting) (citing the comments of the Coker
plurality and concluding that the Louisiana
child rape law cannot pass constitutional
muster).1
Commentators have expressed similar

views. See Fleming, Louisianas Newest Capital Crime: The Death Penalty for Child Rape,
89 J.Crim. L. & C. 717, 727 (1999) (the Coker
Court drew a line between crimes which
result in loss of life, and crimes which do
not); Baily, Death is Different, Even on the
Bayou: The Disproportionality of Crime, 55
Wash. & Lee L.Rev. 1335, 1357 (1998) (noting
that [m]any post-Coker cases interpreting
the breadth of Cokers holding suggest that the
Mississippi Supreme Courts narrow reading
of Coker in Upshaw is a minority position);
Matura, When Will It Stop? The Use of the
Death Penalty for Non-homicide Crimes, 24 J.
Legis. 249, 255 (1998) (stating that the Coker
Court did not draw a distinction between the
rape of an adult woman and the rape of a
minor); Garvey, As the Gentle Rain from
Heaven: Mercy in Capital Sentencing, 81
Cornell L.Rev. 989, 1009, n. 74 (1996) (stating
that courts generally understand Coker to prohibit death sentences for crimes other than
murder); Nanda, Recent Developments in the

United States and Internationally Regarding
Capital PunishmentAn Appraisal, 67 St.
Johns L.Rev. 523, 532 (1993) (finding that
Coker stands for the proposition that a death
sentence is excessive when the victim is not
killed); Ellis, Guilty but Mentally Ill and the
Death Penalty: Punishment Full of Sound
and Fury, Signifying Nothing, 43 Duke L.J.
87, 94 (1994) (referencing Coker to require
capital offenses to be defined by unjustified
human death); Dingerson, Reclaiming the
Gavel: Making Sense out of the Death Penalty Debate in State Legislatures, 18 N.Y.U.
Rev. L. & Soc. Change 873, 878 (1991) (stating that Coker ruled that the imposition of
the death penalty for crimes from which no
death results violates the cruel and unusual
punishment provision of the eighth amendment and that [n]o subsequent Supreme
Court decision has challenged this precedent).
1.
For the past three decades, these interpretations have posed a very high hurdle
for state legislatures considering the passage of new laws permitting the death
penalty for the rape of a child. The enactment and implementation of any new
state death penalty statuteand particularly a new type of statute such as one
that specifically targets the rape of young
childrenimposes many costs. There is
the burden of drafting an innovative law
that must take into account this Courts
exceedingly complex Eighth Amendment
jurisprudence. Securing passage of controversial legislation may interfere in a
variety of ways with the enactment of
other bills on the legislative agenda.
2668
Once the statute is enacted, there is the

burden of training and coordinating the
efforts of those who must implement the
new law. Capital prosecutions are qualitatively more difficult than noncapital
prosecutions and impose special emotional
burdens on all involved. When a capital
sentence is imposed under the new law,
there is the burden of keeping the prisoner on death row and the lengthy and
costly project of defending the constitutionality of the statute on appeal and in
collateral proceedings. And if the law is
eventually overturned, there is the burden of new proceedings on remand.
Moreover, conscientious state lawmakers,
whatever their personal views about the
morality of imposing the death penalty
for child rape, may defer to this Courts
dicta, either because they respect our authority and expertise in interpreting the
Constitution or merely because they do
not relish the prospect of being held to
have violated the Constitution and contravened prevailing standards of decency.
Accordingly, the Coker dicta gave state
legislators a strong incentive not to push
for the enactment of new capital childrape laws even though these legislators
and their constituents may have believed
that the laws would be appropriate and
desirable.
B
The Court expresses doubt that the Coker dicta had this effect, but the skepticism
is unwarranted. It would be quite remarkable if state legislators were not influenced by the considerations noted above.
And although state legislatures typically
do not create legislative materials like
those produced by Congress, there is evidence that proposals to permit the imposition of the death penalty for child rape
were opposed on the ground that enactment would be futile and costly.
In Oklahoma, the opposition to the

States capital child-rape statute argued
that Coker had already ruled the death
penalty unconstitutional as applied to cases
of rape. See Oklahoma Senate News Release, Senator Nichols Targets Child Predators with Death Penalty, Child Abuse
Response Team, May 26, 2006, on line at
http://www.oksenate.gov/news/press
releases/press releases
2006/
pr20060526d.htm (all Internet materials as
visited June 23, 2008, and available in
Clerk of Courts case file). Likewise, opponents of South Carolinas capital childrape law contended that the statute would
waste state resources because it would undoubtedly be held unconstitutional. See
The State, Death Penalty Plan in Spotlight: Attorney General to Advise Senate
Panel on Proposal for Repeat Child Rapists, Mar. 28, 2006 (quoting Laura Hudson, spokeswoman for the S. C. Victim
Assistance Network, as stating that [w]e
dont need to be wasting state money to
have an appeal to the [United States] Supreme Court, knowing we are going to lose
it ). Representative Fletcher Smith of
the South Carolina House of Representatives forecast that the bill would not meet
constitutional standards because death
isnt involved. See Davenport, Emotion
Drives Child Rape Death Penalty Debate
in South Carolina, Associated Press, Apr.
4, 2006.
In Texas, opponents of that States capital child-rape law argued that Cokers reasoning doomed the proposal. House Research Organization Bill Analysis, Mar. 5,
2007 (stating that the law would impose
an excessive punishment and fail to pass
the proportionality test established by the
U.S. Supreme Court and arguing that
Texas should not enact a law of questionable constitutionality simply because it is
politically popular, especially given clues
by the U.S. Supreme Court that death
penalty laws that would be rarely imposed
2669
Cite as 128 S.Ct. 2641 (2008)
or that are not supported by a broad national consensus would be ruled unconstitutional).
C
Because of the effect of the Coker dicta,
the Court is plainly wrong in comparing
the situation here to that in Atkins or
1183, 161 L.Ed.2d 1 (2005). See ante, at
2652 2653. Atkins concerned the constitutionality of imposing the death penalty
on a mentally retarded defendant. Thirteen years earlier, in Penry v. Lynaugh,
492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989), the Court had held that this
was permitted by the Eighth Amendment,
and therefore, during the time between
Penry and Atkins, state legislators had
reason to believe that this Court would
follow its prior precedent and uphold statutes allowing such punishment.
The situation in Roper was similar.
Roper concerned a challenge to the constitutionality of imposing the death penalty
on a defendant who had not reached the
age of 18 at the time of the crime. Sixteen
years earlier in Stanford v. Kentucky, 492
U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306
(1989), the Court had rejected a similar
challenge, and therefore state lawmakers
had cause to believe that laws allowing
such punishment would be sustained.
legislators resolution of the issue can be

interpreted as an expression of their own
judgment, informed by whatever weight
they attach to the values of their constituents. But when state legislators think
that the enactment of a new death penalty
law is likely to be futile, inaction cannot
reasonably be interpreted as an expression
of their understanding of prevailing societal values. In that atmosphere, legislative
inaction is more likely to evidence acquiescence.
D
If anything can be inferred from state
legislative developments, the message is
very different from the one that the Court
perceives. In just the past few years,
despite the shadow cast by the Coker dicta,
five States have enacted targeted capital
child-rape laws. See Ga.Code Ann. 16
61 (1999); Mont.Code Ann. 455503
(1997); Okla. Stat., Tit. 10, 7115(K)
(West Supp.2008); S.C.Code Ann. 163
655(C)(1) (Supp.2007); Tex. Penal Code
Ann. 22.021(a), 12.42(c)(3) (West Supp.
2007). If, as the Court seems to think, our
society is [e]volving toward ever higher
standards of decency, ante, at 2664
2665, these enactments might represent
the beginning of a new evolutionary line.
When state lawmakers believe that their

decision will prevail on the question
whether to permit the death penalty for a
particular crime or class of offender, the
Such a development would not be out of

step with changes in our societys thinking
since Coker was decided. During that
time, reported instances of child abuse
have increased dramatically; 2 and there
From 1976 to 1986, the number of reported

cases of child sexual abuse grew from 6,000
to 132,000, an increase of 2,100%. A. Lurigio, M. Jones, & B. Smith, Child Sexual
Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed.
Probation 69 (1995). By 1991, the number of
cases totaled 432,000, an increase of another
227%. Ibid. In 1995, local child protection
services agencies identified 126,000 children
who were victims of either substantiated or

indicated sexual abuse. Nearly 30% of those
child victims were between the age of four
and seven. Rape, Abuse & Incest National
Network Statistics, online at http://www.
rainn.org/get-information/ statistics/sexual-assault-victims. There were an estimated 90,000 substantiated cases of child sexual abuse
in 2003. Crimes Against Children Research
Center, Reports from the States to the Nation-
2.
2670
are many indications of growing alarm

about the sexual abuse of children. In
1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Program, 42
U.S.C. 14071 (2000 ed. and Supp. V),
which requires States receiving certain
federal funds to establish registration sys-
tems for convicted sex offenders and to

notify the public about persons convicted
of the sexual abuse of minors. All 50
States have now enacted such statutes.3
In addition, at least 21 States and the
District of Columbia now have statutes
permitting the involuntary commitment of
sexual predators,4 and at least 12 States
al Child Abuse and Neglect Data System,

available at www.unh.edu/ccrc/ sexualabuse/Childl
Sexuall
Abuse.pdf.
Tit. 57, 582584 (2003 Supp.); Ore.Rev.

Stat. 181.507 to 181.519 (1993); 1995 Pa.
Laws p. 24 (enacted Oct. 24, 1995); R.I. Gen.
Laws 113716 (1994); S.C.Code Ann.
233430; S.D. Codified Laws 222230
to 222241 (Supp.1995) Tenn.Code Ann.
4039101 to 4039108 (2003); Tex.Rev.
Civ. Stat. Ann., Art. 625213c.1 (Vernon
Supp.1996); Utah Code Ann. 535212.5,
772721.5 (Lexis Supp.1995); Vt. Stat. Ann.,
Tit. 13, 5402; Va.Code Ann. 19.2298.1
to 19.2390.1 (Lexis 1995); Wash. Rev.Code
4.24.550, 9A.44.130, 9A.44.140, 10.01.200,
70.48.470, 72.09.330 (1992 and Supp.1996);
W. Va.Code 618F1 to 618F8 (Lexis
Supp.1995); Wis. Stat. 175.45 (Supp.1995);
Wyo. Stat. Ann. 719301 to 719306
(1995).
3.
Ala.Code 13A11200 to 13A11203,

1181 (1994);
Alaska Stat 1.56.840,
12.63.010100,
18.65.087,
28.05.048,
33.30.035 (1994, 1995, and 1995 Cum.Supp.);
Ariz.Rev.Stat. Ann. 133821 to 3825
(1989 and Supp.1995); Ark.Code Ann. 12
12901 to 909 (1995); Cal.Penal Code Ann.
290 to 290.4 (West Supp.1996); Colo.Rev.
Stat. Ann. 183412.5 (Supp.1996); Conn.
Gen.Stat. Ann. 54102a to 54102r (Supp.
1995); Del.Code Ann. Tit. 11, 4120 (1995);
Fla. Stat. Ann. 775.13, 775.22 (1992 and
Supp.1994);
Ga.Code Ann. 42944.1
(1994); 1995 Haw. Sess. Laws No. 160 (enacted June 14, 1995); Idaho Code 9
340(11)(f), 188301 to 188311 (Supp.1995);
Ill. Comp. Stat. Ann., ch. 730, 150/1 to
150/10 (2002); Ind.Code 52121 to 52
1213 (West Supp.1995); 1995 Iowa Legis.
Serv. 146 (enacted May 3, 1995); Kan. Stat.
Ann. 224901 to 224910 (1995); Ky.Rev.
Stat. Ann. 17.500 to 17.540 (West Supp.
1994); La. Stat. Ann. 15:540 to 15:549
(West Supp.1995); Me.Rev.Stat. Ann., Tit.
34A, 11001 to 11004 (West Supp.1995);
1995 Md. Laws p. 142 (enacted May 9, 1995);
Mass. Gen. Laws Ann., ch. 6, 178D; 1994
Mich. Pub. Acts p. 295 (enacted July 13,
1994); Minn.Stat. 243.166 (1992 and Supp.
1995); Miss.Code Ann. 45331 to 4533
19 (Supp.1995); Mo.Rev.Stat. 566.600 to
566.625 (Supp.1996); Mont.Code Ann. 46
23501 to 4623507 (1994); Neb.Rev.Stat.
4001 to 4014; Nev.Rev.Stat. 207.080,
207.151 to 207.157 (1992 and Supp.1995);
N.H.Rev.Stat. Ann. 632A:11 to 632A:19
(Supp.1995); N.J. Stat. Ann. 2c:71 to
2c:711 (1995); N.M. Stat. Ann. 2911A1
to 2911A8 (Supp.1995); N.Y. Correct. Law
Ann. 168 to 168V (West Supp.1996);
N.C. Gen.Stat. Ann. 14208.510 (Lexis
Supp.1995); N.D. Cent.Code 12.13215
(Lexis Supp.1995); Ohio Rev.Code Ann.
2950.01.08 (Baldwin 1997); Okla. Stat.,
4.
Those States are Arizona, California, Connecticut, the District of Columbia, Florida,
Illinois, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Nebraska, New
Jersey, North Dakota, Oregon, Pennsylvania,
South Carolina, Texas, Virginia, Washington,
and Wisconsin. See Ariz.Rev.Stat. 36
3701 to 363713 (West 2003 and Supp.2007);
Cal. Welf. & Inst.Code Ann. 6600 to
6609.3 (West 1998 and Supp.2008); Conn.
Gen.Stat. 17a566 (1998); D.C.Code 22
3803 to 223811 (2001);
Fla. Stat.
394.910 to 394.931 (West 2002 and Supp.
2005); Ill. Comp. Stat., ch. 725, 207/1 to
207/99 (2002); Iowa Code 229A.1.16
(Supp.2005); Kan. Stat. Ann. 5929a02
(2004 and Supp.2005); Ky.Rev.Stat. Ann.
202A.051 (West
); Mass. Gen. Laws, ch.
123A (1989); Minn.Stat. 253B.02 (1992);
Mo. Ann. Stat. 632.480 to 632.513 (West
2000 and Supp.2006); Neb.Rev.Stat. 83
174 to 83174.05 (2007); N.J. Stat. Ann.
30:427.24 to 30:427.38 (West Supp.
2004); N.D. Cent.Code Ann. 2503.3 (Lexis
2002); Ore.Rev.Stat. 426.005 (1998); Pa.
Stat. Ann., Tit. 42, 9791 to 9799.9 (2007);
S.C.Code Ann. 444810 to 4448170
2671
Cite as 128 S.Ct. 2641 (2008)
have enacted residency restrictions for sex

offenders.5
Seeking to counter the significance of
the new capital child-rape laws enacted
during the past two years, the Court
points out that in recent months efforts to
enact similar laws in five other States have
stalled. Ante, at 2656. These developments, however, all took place after our
decision to grant certiorari in this case, see
552 U.S. , 128 S.Ct. 829, 169 L.Ed.2d
625 (2008), which gave state legislators
reason to delay the enactment of new legislation until the constitutionality of such
laws was clarified. And there is no evidence of which I am aware that these
legislative initiatives failed because the
proposed laws were viewed as inconsistent
with our societys standards of decency.
On the contrary, the available evidence
suggests otherwise. For example, in Colorado, the Senate Appropriations Committee in April voted 6 to 4 against Senate Bill
195, reportedly because it would have cost
(2002 and Supp.2007); Tex. Health & Safety
Code Ann. 841.001 to 841.147 (West
2003); Va.Code Ann. 37.2900 to 37.2920
(2006 and Supp.2007); Wash. Rev.Code
71.09.010 (West 1992 and Supp.2002);
Wis. Stat. 980.0113 (2005).
5.
See Ala.Code 152026 (Supp.2000) (restricts sex offenders from residing or accepting employment within 2,000 feet of school or
child-care facility); Ark.Code Ann. 514
128 (Supp.2007) (unlawful for level three or
four sex offenders to reside within 2,000 feet
of school or daycare center); Cal.Penal Code
Ann. 3003 (West Supp.2008) (parolees may
not live within 35 miles of victim or witnesses, and certain sex offenders on parole
may not live within a quarter mile from a
primary
school);
Fla.
Stat.
947.1405(7)(a)(2) (2001) (released sex offender with victim under 18 prohibited from
living within 1,000 feet of a school, daycare
center, park, playground, or other place
where children regularly congregate); Ga.
Code Ann. 42113 (Supp.2007) (sex offenders required to register shall not reside
within 1,000 feet of any childcare facility,
school, or area where minors congregate);
about $616,000 next year for trials, appeals, public defenders, and prison costs.
Associated Press, Lawmakers Reject
Death Penalty for Child Sex Abusers,
Denver Post, Apr. 11, 2008. Likewise, in
Tennessee, the capital child-rape bill was
withdrawn in committee because of the
high associated costs. The bills sponsor
stated that [b]e-cause of the states budget situation, we thought to withdraw that
billTTTT Well revisit it next year to see if
we can reduce the cost of the fiscal note.
Green, Small Victory in Big Fight for
Tougher Sex Abuse Laws, The Leaf
Chronicle, May 8, 2008, p. 1A. Thus, the
failure to enact capital child-rape laws cannot be viewed as evidence of a moral consensus against such punishment.
E
Aside from its misleading tally of current state laws, the Court points to two
additional objective indicia of a national
Ill. Comp. Stat., ch. 720, 5/119.3(b5)
(Supp.2008) (child sex offenders prohibited
from knowingly residing within 500 feet of
schools); Ky.Rev.Stat. Ann. 17.495 (West
2000) (registered sex offenders on supervised
release shall not reside within 1,000 feet of
school or childcare facility); La.Rev.Stat.
Ann. 14:91.1 (West Supp.2004) (sexually violent predators shall not reside within 1,000
feet of schools unless permission is given by
school superintendent); Ohio Rev.Code Ann.
2950.031 (Lexis 2003) (sex offenders prohibited from residing within 1,000 feet of
school); Okla. Stat., Tit. 57, 590 (West
2003) (prohibits sex offenders from residing
within 2,000 feet of schools or educational
institutions);
Ore.Rev.Stat.
144.642,
144.643 (1999) (incorporates general prohibition on supervised sex offenders living near
places where children reside); Tenn.Code
Ann. 4039111 (2006) (repealed by Acts
2004, ch. 921, 4, effective Aug. 1, 2004) (sex
offenders prohibited from establishing residence within 1,000 feet of school, childcare
facility, or victim).
2672
consensus, ante, at 2651, but these arguments are patent makeweights. The
Court notes that Congress has not enacted
a law permitting a federal district court to
impose the death penalty for the rape of a
child, ante, at 2651 2652, but due to the
territorial limits of the relevant federal
statutes, very few rape cases, not to mention child-rape cases, are prosecuted in
federal court. See 18 U.S.C. 2241,
2242 (2000 ed. and Supp. V); United
States Sentencing Commission, Report to
Congress: Analysis of Penalties for Federal Rape Cases, p. 10, Table 1. Congress
failure to enact a death penalty statute for
this tiny set of cases is hardly evidence of
Congress assessment of our societys values.6
Finally, the Court argues that statistics
about the number of executions in rape
cases support its perception of a national
consensus, but here too the statistics do
not support the Courts position. The
Court notes that the last execution for the
rape of a child occurred in 1964, ante, at
2657, but the Court fails to mention that
litigation regarding the constitutionality of
the death penalty brought executions to a
halt across the board in the late 1960s. In
1965 and 1966, there were a total of eight
executions for all offenses, and from 1968
until 1977, the year when Coker was decided, there were no executions for any
crimes.7 The Court also fails to mention
that in Louisiana, since the state law was
amended in 1995 to make child rape a
capital offense, prosecutors have asked juries to return death verdicts in four cases.
See State v. Dickerson, 011287 (La.
App.6/26/02), 822 So.2d 849 (2002); State v.
Leblanc, 011322 (La.App.5/31/01), 788
6.
Moreover, as noted in the petition for rehearing, the Uniform Code of Military Justice
permits such a sentence. See 10 U.S.C.
856; Manual for CourtsMartial, United
States, Part II, Ch. X, Rule 1004(c)(9) (2008);
id., Part IV, 45.f(1).
7.
Department of Justice, Bureau of Justice

Statistics, online at http://www.ojp.usdoj.gov/
So.2d 1255; 20051981 (La.Sup.Ct.5/22/07),

957 So.2d 757; State v. Davis, Case No.
262,971 (1st Jud. Dist., Caddo Parish, La.)
(cited in Brief for Respondent 42, and n.
38). In two of those cases, Louisiana juries imposed the death penalty. See 2005
1981 (La.Sup.Ct.5/22/07), 957 So.2d 757;
Davis, supra. This 50% record is hardly
evidence that juries share the Courts view
that the death penalty for the rape of a
young child is unacceptable under even the
most aggravated circumstances.8
F
In light of the points discussed above, I
believe that the objective indicia of our
societys evolving standards of decency
can be fairly summarized as follows. Neither Congress nor juries have done anything that can plausibly be interpreted as
evidencing the national consensus that
the Court perceives. State legislatures,
for more than 30 years, have operated
under the ominous shadow of the Coker
dicta and thus have not been free to express their own understanding of our societys standards of decency. And in the
months following our grant of certiorari in
this case, state legislatures have had an
additional reason to pause. Yet despite
the inhibiting legal atmosphere that has
prevailed since 1977, six States have recently enacted new, targeted child-rape
laws.
I do not suggest that six new state laws
necessarily establish a national consensus or even that they are sure evidence of
an ineluctable trend. In terms of the
Courts metaphor of moral evolution, these
bjs/glance/tables/exetab.htm; see also Death
Penalty Information Center, Executions in the
U.S. 16082002: The ESPY File Executions
by Date (2007), online at http://www.death
penaltyinfo.org/ESPYyear.pdf.
8.
Of course, the other five capital child rape

statutes are too recent for any individual to
have been sentenced to death under them.
Cite as 128 S.Ct. 2641 (2008)
enactments might have turned out to be an

evolutionary dead end. But they might
also have been the beginning of a strong
new evolutionary line. We will never
know, because the Court today snuffs out
the line in its incipient stage.
II
A
The Court is willing to block the potential emergence of a national consensus in
favor of permitting the death penalty for
child rape because, in the end, what matters is the Courts own judgment regarding the acceptability of the death penalty. Ante, at 2658. Although the Court
has much to say on this issue, most of the
Courts discussion is not pertinent to the
Eighth Amendment question at hand.
And once all of the Courts irrelevant arguments are put aside, it is apparent that
the Court has provided no coherent explanation for todays decision.
In the next section of this opinion, I will
attempt to weed out the arguments that
are not germane to the Eighth Amendment inquiry, and in the final section, I will
address what remains.
B
A major theme of the Courts opinion is
that permitting the death penalty in childrape cases is not in the best interests of
the victims of these crimes and society at
large. In this vein, the Court suggests
that it is more painful for child-rape victims to testify when the prosecution is
seeking the death penalty. Ante, at 2662.
The Court also argues that a State that
punishes child rape by death may remove
a strong incentive for the rapist not to kill
the victim, ante, at 2664, and may discourage the reporting of child rape, ante,
at 2663 2664.
2673
These policy arguments, whatever their

merits, are simply not pertinent to the
question whether the death penalty is
cruel and unusual punishment. The
Eighth Amendment protects the right of
an accused. It does not authorize this
Court to strike down federal or state criminal laws on the ground that they are not
in the best interests of crime victims or the
broader society. The Courts policy arguments concern matters that legislators
shouldand presumably dotake into account in deciding whether to enact a capital child-rape statute, but these arguments
are irrelevant to the question that is before us in this case. Our cases have cautioned against using the aegis of the
Cruel and Unusual Punishment Clause to
cut off the normal democratic processes,
Atkins v. Virginia, 536 U.S. 304, 323, 122
S.Ct. 2242, 153 L.Ed.2d 335 (2002) (Rehnquist, C. J., dissenting), in turn quoting
Gregg v. Georgia, 428 U.S. 153, 176, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976), (joint
opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that
warning here.
The Court also contends that laws permitting the death penalty for the rape of a
child create serious procedural problems.
Specifically, the Court maintains that it is
not feasible to channel the exercise of sentencing discretion in child-rape cases, ante,
at 2660 2661, and that the unreliability of
the testimony of child victims creates a
danger that innocent defendants will be
convicted and executed, ante, at 2663
2664. Neither of these contentions provides a basis for striking down all capital
child-rape laws no matter how carefully
and narrowly they are crafted.
The Courts argument regarding the
structuring of sentencing discretion is hard
to comprehend. The Court finds it difficult to identify standards that would guide
the decisionmaker so the penalty is re-
2674
served for the most severe cases of child

rape and yet not imposed in an arbitrary
way. Ante, at 2660 2661. Even assuming that the age of a child is not alone a
sufficient factor for limiting sentencing discretion, the Court need only examine the
child-rape laws recently enacted in Texas,
Oklahoma, Montana, and South Carolina,
all of which use a concrete factor to limit
quite drastically the number of cases in
which the death penalty may be imposed.
In those States, a defendant convicted of
the rape of a child may be sentenced to
death only if the defendant has a prior
conviction for a specified felony sex offense. See Mont.Code Ann. 455
503(3)(c) (2007) (If the offender was previously convicted of [a felony sexual offense]
TTT the offender shall be TTT punished by
death TTT); Okla. Stat., Tit. 10, 7115(K)
(West Supp.2008) (Notwithstanding any
other provision of law, any parent or other
person convicted of forcible anal or oral
sodomy, rape, rape by instrumentation, or
lewd molestation of a child under fourteen
(14) years of age subsequent to a previous
conviction for any offense of forcible anal
or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under
fourteen (14) years of age shall be punished by death); S.C.Code Ann. 163
655(C)(1) (Supp.2007) (If the [defendant]
has previously been convicted of, pled
guilty or nolo contendere to, or adjudicated
delinquent for first degree criminal sexual
conduct with a minor who is less than
eleven years of age TTT he must be punished by death or by imprisonment for
life); Tex. Penal Code Ann. 12.42(c)(3)
(2007 Supp.); ([A] defendant shall be punished for a capital felony if it is shown on
the trial of an offense under Section 22.021
TTT that the defendant has previously been
finally convicted of [a felony sexual offense
against a victim younger than fourteen
years of age]).
Moreover, it takes little imagination to

envision other limiting factors that a State
could use to structure sentencing discretion in child rape cases. Some of these
might be: whether the victim was kidnapped, whether the defendant inflicted
severe physical injury on the victim,
whether the victim was raped multiple
times, whether the rapes occurred over a
specified extended period, and whether
there were multiple victims.
The Court refers to limiting standards
that are indefinite and obscure, ante, at
2661, but there is nothing indefinite or
obscure about any of the above-listed aggravating factors. Indeed, they are far
more definite and clear-cut than aggravating factors that we have found to be adequate in murder cases. See, e.g., Arave v.
Creech, 507 U.S. 463, 471, 113 S.Ct. 1534,
123 L.Ed.2d 188 (1993) (whether the defendant was a cold-blooded, pitiless slayer ); Walton v. Arizona, 497 U.S. 639,
646, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)
(whether the perpetrator inflict[ed] mental anguish or physical abuse before the
victims death ); Jurek v. Texas, 428 U.S.
262, 269, 96 S.Ct. 2950, 49 L.Ed.2d 929
(1976) (joint opinion of Stewart, Powell,
and STEVENS, JJ.) (whether the defendant would commit criminal acts of violence that would constitute a continuing
threat to society ). For these reasons,
concerns about limiting sentencing discretion provide no support for the Courts
blanket condemnation of all capital childrape statutes.
That sweeping holding is also not justified by the Courts concerns about the
reliability of the testimony of child victims.
First, the Eighth Amendment provides a
poor vehicle for addressing problems regarding the admissibility or reliability of
evidence, and problems presented by the
testimony of child victims are not unique
to capital cases. Second, concerns about
2675
Cite as 128 S.Ct. 2641 (2008)
the reliability of the testimony of child

witnesses are not present in every childrape case. In the case before us, for
example, there was undisputed medical evidence that the victim was brutally raped,
as well as strong independent evidence
that petitioner was the perpetrator.
Third, if the Courts evidentiary concerns
have Eighth Amendment relevance, they
could be addressed by allowing the death
penalty in only those child-rape cases in
which the independent evidence is sufficient to prove all the elements needed for
conviction and imposition of a death sentence. There is precedent for requiring
special corroboration in certain criminal
cases. For example, some jurisdictions do
not allow a conviction based on the uncorroborated testimony of an accomplice.
See, e.g., Ala.Code 1221222 (1986); Alaska Stat. 12.45.020 (1984); Ark.Code Ann.
1689111(e)(1) (1977); Cal.Penal Code
Ann. 1111 (West 1985); Ga.Code Ann.
2448 (1995); Idaho Code 192117
(Lexis 1979); Minn.Stat. 634.04 (1983);
Mont.Code Ann. 4616213 (1985); Nev.
Rev.Stat. 175.291 (1985); N.D. Cent.
Code Ann. 292114 (1974); Okla. St.,
Tit. 22, 742 (West 1969); Ore.Rev.Stat.
136.440 (1984); S.D. Codified Laws
23A228 (1979). A State wishing to
permit the death penalty in child-rape
cases could impose an analogous corroboration requirement.
C
After all the arguments noted above are
put aside, what is left? What remaining
grounds does the Court provide to justify
its independent judgment that the death
penalty for child rape is categorically unacceptable? I see two.
1
The first is the proposition that we
should be most hesitant before interpret-
ing the Eighth Amendment to allow the

extension of the death penalty. Ante, at
2658 (emphasis added); see also ante, at
2659 2660, 2661 (referring to expansion
of the death penalty). But holding that
the Eighth Amendment does not categorically prohibit the death penalty for the
rape of a young child would not extend
or expand the death penalty. Laws enacted by the state legislatures are presumptively constitutional, Gregg, 428 U.S.,
at 175, 96 S.Ct. 2909 (joint opinion of Stewart, Powell, and STEVENS, JJ.) ([I]n
assessing a punishment selected by a democratically elected legislature against the
constitutional measure, we presume its validity), and until today, this Court has not
held that capital child rape laws are unconstitutional, see ante, at 2654 (Coker does
not speak to the constitutionality of the
death penalty for child rape, an issue not
then before the Court). Consequently,
upholding the constitutionality of such a
law would not extend or expand the
death penalty; rather, it would confirm the
status of presumptive constitutionality that
such laws have enjoyed up to this point.
And in any event, this Court has previously made it clear that [t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular
crime fixes a permanent constitutional
maximum, disabling States from giving effect to altered beliefs and responding to
changed social conditions. Harmelin v.
Michigan, 501 U.S. 957, 990, 111 S.Ct.
2680, 115 L.Ed.2d 836 (1991) (principal
opinion); see also Gregg, supra, at 176, 96
S.Ct. 2909 (joint opinion of Stewart, Powell, and STEVENS, JJ.).
2
The Courts finaland, it appears, principaljustification for its holding is that
murder, the only crime for which defendants have been executed since this
2676
Courts 1976 death penalty decisions,9 is

unique in its moral depravity and in the
severity of the injury that it inflicts on the
victim and the public. See ante, at 2659
2660. But the Court makes little attempt
to defend these conclusions.
With respect to the question of moral
depravity, is it really true that every person who is convicted of capital murder and
sentenced to death is more morally depraved than every child rapist? Consider
the following two cases. In the first, a
defendant robs a convenience store and
watches as his accomplice shoots the store
owner. The defendant acts recklessly, but
was not the triggerman and did not intend
the killing. See, e.g., Tison v. Arizona,
481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d
127 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is
more morally depraved than the second?
The Courts decision here stands in
stark contrast to Atkins and Roper, in
which the Court concluded that characteristics of the affected defendantsmental
retardation in Atkins and youth in Roperdiminished their culpability. See Atkins, 536 U.S., at 305, 122 S.Ct. 2242;
Roper, 543 U.S., at 571, 125 S.Ct. 1183.
Nor is this case comparable to Enmund v.
Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), in which the Court
held that the Eighth Amendment prohibits
the death penalty where the defendant
participated in a robbery during which a
murder was committed but did not personally intend for lethal force to be used. I
have no doubt that, under the prevailing
standards of our society, robbery, the
9.
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d
913 (1976); Jurek v. Texas, 428 U.S. 262, 96
S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson
crime that the petitioner in Enmund intended to commit, does not evidence the
same degree of moral depravity as the
brutal rape of a young child. Indeed, I
have little doubt that, in the eyes of ordinary Americans, the very worst child rapistspredators who seek out and inflict
serious physical and emotional injury on
defenseless young childrenare the epitome of moral depravity.
With respect to the question of the harm
caused by the rape of child in relation to
the harm caused by murder, it is certainly
true that the loss of human life represents
a unique harm, but that does not explain
why other grievous harms are insufficient
to permit a death sentence. And the
Court does not take the position that no
harm other than the loss of life is sufficient. The Court takes pains to limit its
holding to crimes against individual persons and to exclude offenses against the
State, a category that the Court
stretcheswithout explanationto include
drug kingpin activity. Ante, at 2659.
But the Court makes no effort to explain
why the harm caused by such crimes is
necessarily greater than the harm caused
by the rape of young children. This is
puzzling in light of the Courts acknowledgment that [r]ape has a permanent
psychological, emotional, and sometimes
physical impact on the child. Ante, at
2658. As the Court aptly recognizes, [w]e
cannot dismiss the years of long anguish
that must be endured by the victim of
child rape. Ibid.
The rape of any victim inflicts great
injury, and [s]ome victims are so grievously injured physically or psychologically
that life is beyond repair. Coker, 433
v. North Carolina, 428 U.S. 280, 96 S.Ct.
2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49
L.Ed.2d 974 (1976).
2677
Cite as 128 S.Ct. 2641 (2008)
U.S., at 603, 97 S.Ct. 2861 (opinion of

Powell, J.). The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension
to rape that is not present when an adult is
raped. Meister, Murdering Innocence:
The Constitutionality of Capital Child
Rape Statutes, 45 Ariz. L.Rev. 197, 208
209 (2003). See also State v. Wilson, 96
1392, p. 6 (La.Sup.Ct.12/13/96), 685 So.2d
1063, 1067; Broughton, On Horrors
Head Horrors Accumulate: A Reflective
Comment on Capital Child Rape Legislation, 39 Duquesne L.Rev. 1, 38 (2000).
Long-term studies show that sexual abuse
is grossly intrusive in the lives of children
and is harmful to their normal psychological, emotional and sexual development in
ways which no just or humane society can
tolerate. C. Bagley & K. King, Child
Sexual Abuse: The Search for Healing 2
(1990).
It has been estimated that as many as
40% of 7 to 13yearold sexual assault
victims are considered seriously disturbed. A. Lurigio, M. Jones, & B.
Smith, Child Sexual Abuse: Its Causes,
Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69, 70
(1995). Psychological problems include
sudden school failure, unprovoked crying,
dissociation, depression, insomnia, sleep
disturbances, nightmares, feelings of guilt
and inferiority, and self-destructive behavior, including an increased incidence of
suicide. Meister, supra, at 209; Broughton, supra, at 38; Glazer, Child Rapists
Beware! The Death Penalty and Louisianas Amended Aggravated Rape Statute,
25 Am. J.Crim. L. 79, 88 (1997).
The deep problems that afflict child-rape
victims often become societys problems as
well. Commentators have noted correlations between childhood sexual abuse and
later problems such as substance abuse,
dangerous sexual behaviors or dysfunction,
inability to relate to others on an interpersonal level, and psychiatric illness.

Broughton, supra, at 38; Glazer, supra, at
89; Handbook on Sexual Abuse of Children 7 (L. Walker ed.1988). Victims of
child rape are nearly 5 times more likely
than nonvictims to be arrested for sex
crimes and nearly 30 times more likely to
be arrested for prostitution. Ibid.
The harm that is caused to the victims
and to society at large by the worst child
rapists is grave. It is the judgment of the
Louisiana lawmakers and those in an increasing number of other States that these
harms justify the death penalty. The
Court provides no cogent explanation why
this legislative judgment should be overridden. Conclusory references to decency, moderation, restraint, full progress, and moral judgment are not
enough.
III
In summary, the Court holds that the
Eighth Amendment categorically rules out
the death penalty in even the most extreme cases of child rape even though: (1)
This holding is not supported by the original meaning of the Eighth Amendment;
(2) neither Coker nor any other prior precedent commands this result; (3) there are
no reliable objective indicia of a national
consensus in support of the Courts position; (4) sustaining the constitutionality of
the state law before us would not extend
or expand the death penalty; (5) this
Court has previously rejected the proposition that the Eighth Amendment is a oneway ratchet that prohibits legislatures
from adopting new capital punishment
statutes to meet new problems; (6) the
worst child rapists exhibit the epitome of
moral depravity; and (7) child rape inflicts
grievous injury on victims and on society
in general.
2678
The party attacking the constitutionality

of a state statute bears the heavy burden
of establishing that the law is unconstitutional. Gregg, 428 U.S., at 175, 96 S.Ct.
2909 (joint opinion of Stewart, Powell, and
STEVENS, JJ.). That burden has not
been discharged here, and I would therefore affirm the decision of the Louisiana
Supreme Court.
,
Dwayne GILES, Petitioner,
v.
CALIFORNIA.
No. 076053.
the California Superior Court, Los Angeles
County, of first degree murder of his former girlfriend. Defendant appealed. The
California Court of Appeals, 123 Cal.
App.4th 475, 19 Cal.Rptr.3d 843, affirmed.
Review was granted. The California Supreme Court, Chin, J., 40 Cal.4th 833, 55
Cal.Rptr.3d 133, 152 P.3d 433, affirmed.
Certiorari was granted.
Holding: The Supreme Court, Justice
Scalia, held that California Supreme
Courts theory of forfeiture by wrongdoing was not exception to Sixth Amendments confrontation requirement because
it was not established at time of founding
of Bill of Rights or in American jurisprudence since that time.
Vacated and remanded.
Justice Thomas filed concurring opinion.
Justice Alito filed concurring opinion.
Justice Souter filed opinion concurring in

part in which Justice Ginsburg joined.
Justice Breyer filed dissenting opinion in
which Justices Stevens and Kennedy
joined.
1. Criminal Law O662.9

Sixth Amendment provision that in all
criminal prosecutions, accused shall enjoy
right to be confronted with witnesses
against him contemplates that witness who
makes testimonial statements admitted
against defendant will ordinarily be present at trial for cross-examination, and that
if witness is unavailable, his prior testimony will be introduced only if defendant had
prior opportunity to cross-examine him.
2. Criminal Law O662.8, 662.80
Two forms of testimonial statements
were admitted at common law even though
they were unconfronted; (1) declarations
made by speaker who was both on brink of
death and aware that he was dying, and (2)
statements of witness who was detained or
kept away by means or procurement of
defendant.
Second common-law doctrine permitting admission of unconfronted testimonial
statements, referred to as forfeiture by
wrongdoing, permitted introduction of
statements of witness who was detained or
kept away by means or procurement of
defendant.
Common law forfeiture by wrongdoing exception to confrontation requirement applied only when defendant engaged in conduct designed to prevent
witness from testifying.
1166
the decision is to exempt an offender from

registration or to restrict publication of
registry information, it must rest on a
finding that registration or public dissemination is not required for public safety.
54251(b), 54255(a), (b). The State
thus recognizes that some offenders within
the sweep of the publication requirement
are not dangerous to others in any way
justifying special publicity on the Internet,
and the legislative decision to make courts
responsible for granting exemptions belies
the States argument that courts are unequipped to separate offenders who warrant
special publication from those who do not.
The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief
from the courts and those who are not is,
like all legislative choices affecting individual rights, open to challenge under the
Equal Protection Clause. See, e. g., 3 R.
Rotunda & J. Nowak, Treatise on Constitutional Law 17.6 (3d ed.1999); L. Tribe,
American Constitutional Law 1634 (2d
ed.1988). The refusal to allow even the
possibility of relief to, say, a 19yearold
who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination. Todays case is no
occasion to speak either to the possible
merits of such a challenge or the standard
of scrutiny that might be in order when
considering it. I merely note that the
Courts rejection of respondents procedural due process claim does not immunize
publication schemes like Connecticuts
from an equal protection challenge.
[For opinion of Justice STEVENS concurring in the judgment, see ante, p. 1156.]
,
was also available to any offender who became subject to registration by virtue of a
conviction prior to October 1, 1998, if he was
not incarcerated for the offense, had not been
538 U.S. 10
538 U.S. 63, 155 L.Ed.2d 144
Bill LOCKYER, Attorney General

of California, Petitioner,
v.
Leandro ANDRADE.
No. 011127.
State prisoner who was convicted on
two counts of petty theft and sentenced to
life in prison under Californias Career
Criminal Punishment Act, also known as
the Three Strikes law, petitioned for writ
of habeas corpus. The United States District Court for the Central District of California, Christina A. Snyder, J., denied petition, and prisoner appealed. The United
States Court of Appeals for the Ninth
Circuit, 270 F.3d. 743, Paez, Circuit Judge,
reversed and remanded. Certiorari was
granted. The Supreme Court, Justice
OConnor, held that California Court of
Appeals decision affirming petitioners two
consecutive terms of 25 years to life in
prison for third strike conviction was not
contrary to or an unreasonable application of clearly established gross disproportionality principle set forth by Rummel, Solem and Harmelin decisions of
United States Supreme Court and thus did
not warrant federal habeas relief.
Reversed.
Justice Souter dissented and filed
opinion in which Justices Stevens, Ginsburg and Breyer joined.
1. Habeas Corpus O450.1, 452
Antiterrorism and Effective Death
Penalty Act (AEDPA) does not require a
federal habeas court to adopt any one
methodology in deciding the only question
that matters, whether a state court decisubsequently convicted of a registrable offense, and had properly registered under the
law. 54255(c)(5).
538 U.S. 63
LOCKYER v. ANDRADE
Cite as 123 S.Ct. 1166 (2003)
sion is contrary to, or involved an unreasonable application of, clearly established

Federal law. 28 U.S.C.A. 2254(d)(1).
2. Habeas Corpus O452
The phrase clearly established in
Antiterrorism and Effective Death Penalty
Act (AEDPA) refers to the holdings, as
opposed to the dicta, of decisions of the
United States Supreme Court as of the
time of the relevant state court decision; in
other words, clearly established Federal
law is the governing legal principle or
principles set forth by the Supreme Court
at the time the state court renders its
decision. 28 U.S.C.A. 2254(d)(1).
and definitions.

In determining whether a particular
sentence for a term of years can violate
the Eighth Amendment, United States Supreme Court has not established a clear or
consistent path for courts to follow, and
the only clearly established law emerging
from its jurisprudence in this area, for
purposes of federal habeas relief under the
Act (AEDPA), is that gross disproportionality principle applies to sentences for
terms of years. U.S.C.A. Const.Amend.
8.; 28 U.S.C.A. 2254(d)(1).
4. Habeas Corpus O509(1)
California Court of Appeals decision
affirming petitioners two consecutive
terms of 25 years to life in prison for
third strike convictions of two counts of
petty theft was not contrary to and did not
involve unreasonable application of clearly
established gross disproportionality principle set forth by Rummel, Solem and
Harmelin decisions of United States Supreme Court, and thus, federal habeas relief was not warranted under Antiterrorism and Effective Death Penalty Act
(AEDPA). U.S.C.A. Const.Amend. 8; 28
U.S.C.A. 2254(d)(1).
1167

Under Antiterrorism and Effective
Death Penalty Act (AEDPA), state court
decision is contrary to clearly established precedent of United States Supreme
Court if the state court applies a rule that
contradicts the governing law set forth in
Supreme Court cases or if the state court
confronts a set of facts that are materially
indistinguishable from a decision of Supreme Court and nevertheless arrives at a
result different from Supreme Court precedent. 28 U.S.C.A. 2254(d)(1).
and definitions.
6. Habeas Corpus O450.1

Under the unreasonable application
clause of Antiterrorism and Effective
Death Penalty Act (AEDPA), federal habeas court may grant writ if state court
identifies correct governing legal principle
from United States Supreme Courts decisions but unreasonably applies that principle to the facts of the prisoners case; state
court decision must be more than incorrect
or erroneous and state courts application
of clearly established law must be objectively
unreasonable.
28
U.S.C.A.
2254(d)(1).
and definitions.
West Codenotes
Negative Treatment Reconsidered
Wests Ann.Cal. Penal Code 667,
1170.12
Syllabus *
California charged respondent Andrade with two felony counts of petty theft
with a prior conviction after he stole approximately $150 worth of videotapes from
two different stores. Under Californias
three strikes law, any felony can constitute
the third strike subjecting a defendant to
a prison term of 25 years to life. The jury
found Andrade guilty and then found that
he had three prior convictions that qualithe reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 50 L.Ed. 499.
1168
fied as serious or violent felonies under

the three strikes regime. Because each of
his petty theft convictions thus triggered a
separate application of the three strikes
law, the judge sentenced him to two consecutive terms of 25 years to life. In
affirming, the California Court of Appeal
rejected his claim that his sentence violated the constitutional prohibition against
cruel and unusual punishment. It found
the Solem v. Helm, 463 U.S. 277, 103 S.Ct.
3001, 77 L.Ed.2d 637, proportionality analysis questionable in light of Harmelin v.
Michigan, 501 U.S. 957, 111 S.Ct. 2680,
115 L.Ed.2d 836. It then compared the
facts in Andrades case to those in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct.
1133, 63 L.Ed.2d 382in which this Court
rejected a claim that a life sentence was
grossly disproportionate to the felonies
that formed the predicate for the sentence,
id., at 265, 100 S.Ct. 1133and concluded
that Andrades sentence was not disproportionate.
The California Supreme
Court denied discretionary review. The
Federal District Court denied Andrades
subsequent habeas petition, but the Ninth
Circuit granted him a certificate of appealability and reversed. Reviewing the case
under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), the
latter court held that an unreasonable application of clearly established federal law
under 28 U.S.C. 2254(d)(1) occurs when
there is clear error; concluded that both
Solem and Rummel remain good law and
are instructive in applying Harmelin; and
found that the California Court of Appeals
disregard for Solem resulted in an unreasonable application of clearly established
Supreme Court law and was irreconcilable
with Solem, thus constituting clear error.
Held: The Ninth Circuit erred in ruling that the California Court of Appeals
decision was contrary to, or an unreasonable application of, this Courts clearly established law within the meaning of
2254(d)(1). Pp. 11721176.
S 64(a) AEDPA does not require a federal habeas court to adopt any one meth-
538 U.S. 63
odology in deciding the only question that

matters under 2254(d)(1)whether a
state court decision is contrary to, or involved an unreasonable application of,
clearly established federal law. In this
case, this Court does not reach the question whether the state court erred, but
focuses solely on whether habeas relief is
barred by 2254(d)(1). P. 1172.
(b) This Court must first decide what
constitutes such clearly established law.
Andrade claims that Rummel, Solem, and
Harmelin clearly establish a principle that
his sentence is so grossly disproportionate
that it violated the Eighth Amendment.
Under 2254(d)(1), clearly established
Federal law is the governing legal principle or principles set forth by this Court at
the time a state court renders its decision.
The difficulty with Andrades position is
that the Court has not established a clear
or consistent path for courts to follow in
determining whether a particular sentence
for a term of years can violate the Eighth
Amendment. Indeed, the only clearly established law emerging from the Courts
jurisprudence in this area is that a gross
disproportionality principle applies to such
sentences. Because the Courts cases lack
clarity regarding what factors may indicate gross disproportionality, the principles precise contours are unclear, applicable only in the exceedingly rare and
extreme case. Harmelin, supra, at
1001, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment). Pp. 11721173.
(c) The California Court of Appeals
decision was not contrary to, or involved
an unreasonable application of, the clearly
established gross disproportionality principle. First, a decision is contrary to clearly
established precedent if the state court
applied a rule that contradicts the governing law set forth in this Courts cases or
confronts facts that are materially indistinguishable from a Court decision and nevertheless arrives at a different result.
Williams v. Taylor, 529 U.S. 362, 405406,
120 S.Ct. 1495, 146 L.Ed.2d 389. An-
538 U.S. 66
1169
LOCKYER v. ANDRADE
Cite as 123 S.Ct. 1166 (2003)
drades sentence implicates factors relevant in both Rummel and Solem. Because
Harmelin and Solem specifically stated
that they did not overrule Rummel, it was
not contrary to this Courts clearly established law for the state court to turn to
Rummel in deciding whether the sentence
was
grossly
disproportionate.
See
Harmelin, supra, at 998, 111 S.Ct. 2680
(KENNEDY, J.). Also, the facts here fall
in between Solem and Rummel but are not
materially indistinguishable from either.
Thus, the state court did not confront materially indistinguishable facts yet arrive at
a different result. Second, under the unreasonable application clause, a federal
habeas court may grant the writ if the
state court identifies the correct governing
legal principle but unreasonably applies it
to the facts of the prisoners case.
Williams v. Taylor, 529 S 65U.S., at 413, 120
S.Ct. 1495. The state court decision must
be objectively unreasonable, not just incorrect or erroneous. Id., at 409, 410, 412,
120 S.Ct. 1495. Here, the Ninth Circuit
erred in defining objectively unreasonable to mean clear error. While habeas
relief can be based on an application of a
governing legal principle to a set of facts
different from those of the case in which
the principle was announced, the governing legal principle here gives legislatures
broad discretion to fashion a sentence that
fits within the scope of the proportionality
principlethe precise contours of which
are unclear. Harmelin, supra, at 998,
111 S.Ct. 2680 (KENNEDY, J.). And it
was not objectively unreasonable for the
state court to conclude that these contours permitted an affirmance of Andrades sentence. Cf., e.g., Riggs v. California, 525 U.S. 1114, 1115, 119 S.Ct. 890,
142 L.Ed.2d 789 (STEVENS, J., dissenting from denial of certiorari). Pp. 1173
1176.
270 F.3d 743, reversed.
OCONNOR, J., delivered the opinion
of the Court, in which REHNQUIST, C.
J., and SCALIA, KENNEDY, and
THOMAS, JJ., joined. SOUTER, J., filed
a dissenting opinion, in which STEVENS,

GINSBURG, and BREYER, JJ., joined,
post, p. 1176.
Bill Lockyer, Attorney General, Robert
R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant
Attorney General, Carl H. Horst, Supervising Deputy Attorney General, Douglas
P. Danzig, Deputy Attorney General, San
Diego, CA, for Petitioner-Appellee.
Steven R. Shapiro, New York City,
Mark D. Rosenbaum, Daniel P. Tokaji,
Los Angeles, CA, Alan L. Schlosser, San
Francisco, CA, Erwin Chemerinsky, Los
Angeles, CA, Paul Hoffman, Schonbrun,
DeSimone, Seplow, Harris & Hoffman,
Venice, CA, Jordan C. Budd, San Diego,
CA, for respondent.
2002 WL 1339900 (Pet.Brief)
2002 WL 1987633 (Resp.Brief)
S 66Justice OCONNOR delivered the
This case raises the issue whether the
United States Court of Appeals for the
Ninth Circuit erred in ruling that the California Court of Appeals decision affirming
Leandro Andrades two consecutive terms
of 25 years to life in prison for a third
strike conviction is contrary to, or an
unreasonable application of, clearly established federal law as determined by this
Court within the meaning of 28 U.S.C.
2254(d)(1).
I
A
On November 4, 1995, Leandro Andrade
stole five videotapes worth $84.70 from a
Kmart store in Ontario, California. Security personnel detained Andrade as he was
leaving the store. On November 18, 1995,
Andrade entered a different Kmart store
in Montclair, California, and placed four
videotapes worth $68.84 in the rear waist-
1170
band of his pants. Again, security guards

apprehended Andrade as he was exiting
the premises. Police subsequently arrested Andrade for these crimes.
These two incidents were not Andrades
first or only encounters with law enforcement. According to the state probation
officers presentence report, Andrade has
been in and out of state and federal prison
since 1982. In January 1982, he was convicted of a misdemeanor theft offense and
was sentenced to 6 days in jail with 12
months probation. Andrade was arrested
again in November 1982 for multiple
counts of first-degree residential burglary.
He pleaded guilty to at least three of those
counts, and in April of the following year
he was sentenced to 120 months in prison.
In 1988, Andrade was convicted in federal
court of [t]ransportation of [m]arijuana,
App. 24, and was sentenced to eight years
in federal prison. In 1990, he was convicted in state court for a misdemeanor petty
theft offense and was ordered to serve 180
days in jail. In September 1990, Andrade
was convicted again in federal court for
the same felSony67 of [t]ransportation of
[m]arijuana, ibid., and was sentenced to
2,191 days in federal prison. And in 1991,
Andrade was arrested for a state parole
violationescape from federal prison. He
was paroled from the state penitentiary
system in 1993.
A state probation officer interviewed
Andrade after his arrest in this case. The
presentence report notes:
The defendant admitted committing the
offense. The defendant further stated
he went into the KMart Store to steal
videos. He took four of them to sell so
he could buy heroin. He has been a
heroin addict since 1977. He says when
he gets out of jail or prison he always
does something stupid. He admits his
addiction controls his life and he steals
for his habit. Id., at 25.
Because of his 1990 misdemeanor conviction, the State charged Andrade in this
case with two counts of petty theft with a
538 U.S. 66
prior conviction, in violation of Cal.Penal

Code Ann. 666 (West Supp.2002). Under California law, petty theft with a prior
conviction is a so-called wobbler offense
because it is punishable either as a misdemeanor or as a felony. Ibid.; cf. Ewing
v. California, post, 538 U.S., at 1617, 123
S.Ct. 1179 (plurality opinion). The decision to prosecute petty theft with a prior
conviction as a misdemeanor or as a felony
is in the discretion of the prosecutor. See
post, 538 U.S., at 17, 123 S.Ct. 1179. The
trial court also has discretion to reduce the
charge to a misdemeanor at the time of
sentencing. See People v. Superior Court
of Los Angeles Cty. ex rel. Alvarez, 14
Cal.4th 968, 979, 60 Cal.Rptr.2d 93, 928
P.2d 1171, 11771178 (1997); see also Ewing v. California, post, 538 U.S., at 17, 123
S.Ct. 1179.
Under Californias three strikes law, any
felony can constitute the third strike, and
thus can subject a defendant to a term of
25 years to life in prison. See Cal.Penal
Code Ann. 667(e)(2)(A) (West 1999); see
also Ewing v. California, post, 538 U.S., at
16, 123 S.Ct. 1179. In this case, the prosecutor decided to charge the two counts of
theft as felonies rather than misdemeanors. The trial court denied Andrades motion to reduce the ofSfenses68 to misdemeanors, both before the jury verdict and again
in state habeas proceedings.
A jury found Andrade guilty of two
counts of petty theft with a prior conviction. According to California law, a jury
must also find that a defendant has been
convicted of at least two serious or violent
felonies that serve as qualifying offenses
under the three strikes regime. In this
case, the jury made a special finding that
Andrade was convicted of three counts of
first-degree residential burglary. A conviction for first-degree residential burglary
qualifies as a serious or violent felony for
the purposes of the three strikes law.
Cal.Penal Code Ann. 667.5, 1192.7
(West 1999); see also Ewing v. California,
post, 538 U.S., at 19, 123 S.Ct. 1179. As a
538 U.S. 70
LOCKYER v. ANDRADE
Cite as 123 S.Ct. 1166 (2003)
consequence, each of Andrades convictions

for theft under Cal.Penal Code Ann. 666
(West Supp.2002) triggered a separate application of the three strikes law. Pursuant to California law, the judge sentenced
Andrade to two consecutive terms of 25
years to life in prison. See 667(c)(6),
667(e)(2)(B). The State stated at oral argument that under the decision announced
by the Supreme Court of California in
People v. Garcia, 20 Cal.4th 490, 85 Cal.
Rptr.2d 280, 976 P.2d 831 (1999)a decision that postdates his conviction and sentenceit remains available for Andrade
to file another State habeas corpus petition arguing that he should serve only one
term of 25 years to life in prison because
sentencing courts have a right to dismiss
strikes on a count-by-count basis. Tr. of
Oral Arg. 24.
B
On direct appeal in 1997, the California
Court of Appeal affirmed Andrades sentence of two consecutive terms of 25 years
to life in prison. It rejected Andrades
claim that his sentence violates the constitutional prohibition against cruel and unusual punishment. The court stated that
the proportionality analysis of Solem v.
Helm, 463 U.S. 277, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983), is questionable in
light of Harmelin v. Michigan, 501 U.S.
957, 111 S.Ct. 2680, 115 L.Ed.2d 836
(1991). App. to Pet. for Cert. 76. The
court then apSplied69 our decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133,
63 L.Ed.2d 382 (1980), where we rejected
the defendants claim that a life sentence
was grossly disproportionate to the
three felonies that formed the predicate
for his sentence. Id., at 265, 100 S.Ct.
1133. The California Court of Appeal then
examined Andrades claim in light of the
facts in Rummel: Comparing [Andrades]
crimes and criminal history with that of
defendant Rummel, we cannot say the sentence of 50 years to life at issue in this
case is disproportionate and constitutes
cruel and unusual punishment under the
1171
United States Constitution. App. to Pet.

for Cert. 7677.
After the Supreme Court of California
denied discretionary review, Andrade filed
a petition for a writ of habeas corpus in
Federal District Court. The District
Court denied his petition. The Ninth Circuit granted Andrade a certificate of appealability as to his claim that his sentence
violated the Eighth Amendment, and subsequently reversed the judgment of the
District Court. 270 F.3d 743 (2001).
The Ninth Circuit first noted that it was
reviewing Andrades petition under the
Act of 1996 (AEDPA), 110 Stat. 1214. Applying its own precedent, the Ninth Circuit
held that an unreasonable application of
clearly established federal law occurs
when our independent review of the legal
question leaves us with a firm conviction
that one answer, the one rejected by the
[state] court, was correct and the other,
the application of the federal law that the
[state] court adopted, was erroneousin
other words that clear error occurred.
270 F.3d, at 753 (alteration in original)
(quoting Van Tran v. Lindsey, 212 F.3d
1143, 11531154 (C.A.9 2000)).
The court then reviewed our three most
recent major precedents in this area
Rummel v. Estelle, supra, Solem v. Helm,
supra, and Harmelin v. Michigan, supra.
The Ninth Circuit follow[ed] the test prescribed by Justice KENNEDY in Harmelin, concluding that both Rummel and
Solem remain good law and are instructive
in Harmelins applicaStion.70 270 F.3d, at
766. It then noted that the California
Court of Appeal compared the facts of
Andrades case to the facts of Rummel,
but not Solem. 270 F.3d, at 766. The
Ninth Circuit concluded that it should
grant the writ of habeas corpus because
the state courts disregard for Solem results in an unreasonable application of
clearly established Supreme Court law,
and is irreconcilable with TTT Solem,
1172
thus constituting clear error.

766767.
Id., at
Judge Sneed dissented in relevant part.

He wrote that [t]he sentence imposed in
this case is not one of the exceedingly
rare terms of imprisonment prohibited by
the Eighth Amendments proscription
against cruel and unusual punishment.
Id., at 767 (quoting Harmelin v. Michigan,
supra, at 1001, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring
in judgment)). Under his view, the state
court decision upholding Andrades sentence was thus not an unreasonable application of clearly established federal law.
270 F.3d, at 772. We granted certiorari,
535 U.S. 969, 122 S.Ct. 1434, 152 L.Ed.2d
379 (2002), and now reverse.
538 U.S. 70
dard of review. See, e.g., Van Tran v.

Lindsey, supra, at 11541155; Clark v.
Murphy, 317 F.3d 1038, 1044, n. 3 (C.A.9
2003). We disagree with this approach.
AEDPA does not require a federal habeas
court to adopt any one methodology in
deciding the only question that matters
under 2254(d)(1)whether a state court
decision is contrary to, or involved an unreasonable application of, clearly established federal law. See Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145
L.Ed.2d 727 (2000). In this case, we do
not reach the question whether the state
court erred and instead focus solely on
whether 2254(d) forecloses habeas relief
on Andrades Eighth Amendment claim.
III
II
Andrades argument in this Court is that
two consecutive terms of 25 years to life
for stealing approximately $150 in videotapes is grossly disproportionate in violation of the Eighth Amendment. Andrade
similarly maintains that the state court
decision affirming his sentence is contrary
to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States. 28 U.S.C. 2254(d)(1).
[1] AEDPA circumscribes a federal
habeas courts review of a state court decision. Section 2254 provides:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State
court shall not be granted with respect
to any claim that was adjudicated on the
merits in State court proceedings unless
the adjudication of the claim
S 71(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.
The Ninth Circuit requires federal habeas
courts to review the state court decision de
novo before applying the AEDPA stan-
A
[2] As a threshold matter here, we
first decide what constitutes clearly established Federal law, as determined by
the Supreme Court of the United States.
2254(d)(1). Andrade relies upon a series
of precedents from this CourtRummel v.
Estelle, supra, Solem v. Helm, 463 U.S.
277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983),
and Harmelin v. Michigan, 501 U.S. 957,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
that he claims clearly establish a principle
that his sentence is so grossly disproportionate that it violates the Eighth Amendment. Section 2254(d)(1)s clearly established phrase refers to the holdings, as
opposed to the dicta, of this Courts decisions as of the time of the relevant statecourt decision. Williams v. Taylor, 529
U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). In other words, clearly established Federal law under 2254(d)(1) is
the governing legal principle or principles
set forth by the Supreme Court at the
time the state S 72court renders its decision.
See id., at 405, 413, 120 S.Ct. 1495; Bell v.
Cone, 535 U.S. 685, 698, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002). In most situations, the task of determining what we
LOCKYER v. ANDRADE
538 U.S. 73
Cite as 123 S.Ct. 1166 (2003)
have clearly established will be straightforward. The difficulty with Andrades position, however, is that our precedents in
this area have not been a model of clarity.
See Harmelin v. Michigan, 501 U.S., at
965, 111 S.Ct. 2680 (opinion of SCALIA,
J.); id., at 996, 998, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment). Indeed, in determining
whether a particular sentence for a term of
years can violate the Eighth Amendment,
we have not established a clear or consistent path for courts to follow. See Ewing
v. California, post, 538 U.S., at 2023, 123
S.Ct. 1179.
B
[3] Through this thicket of Eighth
Amendment jurisprudence, one governing
legal principle emerges as clearly established under 2254(d)(1): A gross disproportionality principle is applicable to
sentences for terms of years.
Our cases exhibit a lack of clarity regarding what factors may indicate gross
disproportionality. In Solem (the case
upon which Andrade relies most heavily),
we stated: It is clear that a 25year
sentence generally is more severe than a
15year sentence, but in most cases it
would be difficult to decide that the former
violates the Eighth Amendment while the
latter does not. 463 U.S., at 294, 103
S.Ct. 3001 (footnote omitted). And in
Harmelin, both Justice KENNEDY and
Justice SCALIA repeatedly emphasized
this lack of clarity: that Solem was
scarcely the expression of clear TTT constitutional law, 501 U.S., at 965, 111 S.Ct.
2680 (opinion of SCALIA, J.), that in
adher[ing] to the narrow proportionality
principle TTT our proportionality decisions
have not been clear or consistent in all
respects, id., at 996, 111 S.Ct. 2680
concurring in judgment), that we lack
clear objective standards to distinguish between sentences for different terms of
years, id., at 1001, 111 S.Ct. 2680 (KEN-
1173
NEDY, J., concurring in part and concurring in judgment), and that the precise
contours of the S 73proportionality principle
are unclear, id., at 998, 111 S.Ct. 2680
concurring in judgment).
Thus, in this case, the only relevant
clearly established law amenable to the
contrary to or unreasonable application
of framework is the gross disproportionality principle, the precise contours of which
are unclear, applicable only in the exceedingly rare and extreme case. Id., at
1001, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment) (internal quotation marks omitted);
see also Solem v. Helm, supra, at 290, 103
S.Ct. 3001; Rummel v. Estelle, 445 U.S.,
at 272, 100 S.Ct. 1133.
IV
[4] The final question is whether the
California Court of Appeals decision affirming Andrades sentence is contrary to,
or involved an unreasonable application
of, this clearly established gross disproportionality principle.
[5] First, a state court decision is contrary to our clearly established precedent
if the state court applies a rule that contradicts the governing law set forth in our
cases or if the state court confronts a set
of facts that are materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different
from our precedent. Williams v. Taylor,
supra, at 405406, 120 S.Ct. 1495; see also
Bell v. Cone, supra, at 694, 122 S.Ct. 1843.
In terms of length of sentence and availability of parole, severity of the underlying
offense, and the impact of recidivism, Andrades sentence implicates factors relevant in both Rummel and Solem. Because
Harmelin and Solem specifically stated
that they did not overrule Rummel, it was
not contrary to our clearly established law
for the California Court of Appeal to turn
to Rummel in deciding whether a sentence
is grossly disproportionate. See Harme-
1174
538 U.S. 73
lin, supra, at 998, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring in judgment); Solem, supra, at 288, n.
13, 303304, n. 32, 103 S.Ct. 3001. Indeed,
Harmelin allows a state court to reasonably rely on Rummel in determining
whether a sentence is grossly disproportionate. The California Court of Appeals
decision S 74was therefore not contrary to
the governing legal principles set forth in
our cases.
tinguishable from either. Cf. Ewing v.

California, post, 538 U.S., at 40, 123 S.Ct.
1179 (BREYER, J., dissenting) (recognizing a twilight zone between Solem and
Rummel ). Consequently, the state court
did not confron[t] a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless arriv[e]
at a result different from our precedent.
Williams v. Taylor, 529 U.S., at 406, 120
S.Ct. 1495.1
Andrades sentence also was not materially indistinguishable from the facts in Solem. The facts here fall in between the
facts in Rummel and the facts in Solem.
Solem involved a sentence of life in prison
without the possibility of parole. 463 U.S.,
at 279, 103 S.Ct. 3001. The defendant in
Rummel was sentenced to life in prison
with the possibility of parole. 445 U.S., at
267, 100 S.Ct. 1133. Here, Andrade retains the possibility of parole. Solem acknowledged that Rummel would apply in a
similar factual situation. 463 U.S., at
304, n. 32, 103 S.Ct. 3001. And while this
case resembles to some degree both Rummel and Solem, it is not materially indis-
[6] S 75Second, [u]nder the unreasonable application clause, a federal habeas

court may grant the writ if the state court
identifies the correct governing legal principle from this Courts decisions but unreasonably applies that principle to the facts
of the prisoners case. Id., at 413, 120
S.Ct. 1495. The unreasonable application clause requires the state court decision to be more than incorrect or erroneous. Id., at 410, 412, 120 S.Ct. 1495. The
state courts application of clearly established law must be objectively unreasonable. Id., at 409, 120 S.Ct. 1495.
Justice SOUTER argues that the possibility

of Andrades receiving parole in 50 years
makes this case similar to the facts in Solem
v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983). Post, at 1176 (dissenting
opinion). Andrades sentence, however, is
also similar to the facts in Rummel v. Estelle,
445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382
(1980), a case that is also controlling. Post,
at 1176. Given the lack of clarity of our precedents in Solem, Rummel, and Harmelin v.
Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991), we cannot say that the
state courts affirmance of two sentences of
25 years to life in prison was contrary to our
clearly established precedent. And to the extent that Justice SOUTER is arguing that the
similarity of Solem to this case entitles Andrade to relief under the unreasonable application prong of 2254(d), we reject his analysis for the reasons given infra, at 1175.
Moreover, it is not true that Andrades sentence can only be understood as punishment
for the total amount he stole. Post, at 1176.
To the contrary, California law specifically
provides that each violation of Cal.Penal Code
Ann. 666 (West Supp.2002) triggers a separate application of the three strikes law, if the
different felony counts are not arising from

the same set of operative facts. 667(c)(6)
(West 1999); see also 667(e)(2)(B). Here,
Andrade was sentenced to two consecutive
terms under California law precisely because
the two thefts of two different Kmart stores
occurring two weeks apart were two distinct
crimes.
1.
The Ninth Circuit made an initial error

in its unreasonable application analysis.
Justice SOUTER, relying on Robinson v.

California, 370 U.S. 660, 82 S.Ct. 1417, 8
L.Ed.2d 758 (1962), also argues that in this
case, it is unrealistic to think that a sentence of 50 years to life for Andrade is not
equivalent to life in prison without parole.
Post, at 1177. This argument, however, misses the point. Based on our precedents, the
state court decision was not contrary to, or an
unreasonable application of, our clearly established law. Moreover, Justice SOUTERs
position would treat a sentence of life without
parole for the 77yearold person convicted
of murder as equivalent to a sentence of life
with the possibility of parole in 10 years for
the same person convicted of the same crime.
Two different sentences do not become materially indistinguishable based solely upon the
age of the persons sentenced.
538 U.S. 77
LOCKYER v. ANDRADE
Cite as 123 S.Ct. 1166 (2003)
In Van Tran v. Lindsey, 212 F.3d, at

11521154, the Ninth Circuit defined objectively unreasonable to mean clear error. These two standards, however, are
not the same. The gloss of clear error
fails to give proper deference to state
courts by conflating error (even clear error) with unreasonableness. See Williams
v. Taylor, supra, at 410, 120 S.Ct. 1495;
Bell v. Cone, 535 U.S., at 699, 122 S.Ct.
1843.
It is not enough that a federal habeas
court, in its independent review of the
legal question, is left with a firm conviction that the state court was erroneous. 270 F.3d, at 753 (quoting Van
Tran v. Lindsey, supra, at 11531154).
We have held precisely the opposite: Under 2254(d)(1)s unreasonable application clause, then, a federal habeas court
may not issue the writ simply because that
S 76court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Williams v.
Taylor, 529 U.S., at 411, 120 S.Ct. 1495.
Rather, that application must be objectively unreasonable. Id., at 409, 120 S.Ct.
1495; Bell v. Cone, supra, at 699, 122 S.Ct.
1843; Woodford v. Visciotti, 537 U.S. 19,
27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)
(per curiam).
Section 2254(d)(1) permits a federal
court to grant habeas relief based on the
application of a governing legal principle
to a set of facts different from those of the
case in which the principle was announced.
See, e.g., Williams v. Taylor, supra, at
407, 120 S.Ct. 1495 (noting that it is an
unreasonable application of this Courts
precedent if the state court identifies the
correct governing legal rule from this
Courts cases but unreasonably applies it
to the facts of the particular state prisoners case). Here, however, the governing
legal principle gives legislatures broad dis2.
Justice SOUTER would hold that Andrades

sentence also violates the unreasonable application prong of 2254(d)(1). Post, at 1177
1178. His reasons, however, do not change
1175
cretion to fashion a sentence that fits

within the scope of the proportionality
principlethe precise contours of which
are unclear. Harmelin v. Michigan,
501 U.S., at 998, 111 S.Ct. 2680 (KENNEDY, J., concurring in part and concurring
in judgment). And it was not objectively
unreasonable for the California Court of
Appeal to conclude that these contours
permitted an affirmance of Andrades sentence.
Indeed, since Harmelin, several Members of this Court have expressed uncertainty regarding the application of the
proportionality principle to the California
three strikes law. Riggs v. California, 525
U.S. 1114, 1115, 119 S.Ct. 890, 142 L.Ed.2d
789 (1999) (STEVENS, J., joined by
SOUTER and GINSBURG, JJ., respecting denial of certiorari) ([T]here is some
uncertainty about how our cases dealing
with the punishment of recidivists should
apply); see also id., at 1116, 119 S.Ct. 890
(It is thus unclear how, if at all, a defendants criminal record beyond the requisite
two prior strikes TTT affects the constitutionality of his sentence); cf. Durden v.
California, 531 U.S. 1184, 121 S.Ct. 1183,
148 L.Ed.2d 1027 (2001) (SOUTER, J.,
joined by BREYER, J., dissenting from
denial of certiorari) (arguing that the
Court should hear the three strikes gross
S 77disproportionality issue on direct review
because of the potential for disagreement
over application of AEDPA).2
The gross disproportionality principle
reserves a constitutional violation for only
the extraordinary case. In applying this
principle for 2254(d)(1) purposes, it was
not an unreasonable application of our
clearly established law for the California
Court of Appeal to affirm Andrades sentence of two consecutive terms of 25 years
to life in prison.
the uncertainty of the scope of the proportionality principle. We cannot say that the
state court decision was an unreasonable application of this principle.
1176
V
The judgment of the United States
Court of Appeals for the Ninth Circuit,
accordingly, is reversed.
It is so ordered.
Justice SOUTER, with whom Justice
STEVENS, Justice GINSBURG, and
Justice BREYER join, dissenting.
The application of the Eighth Amendment prohibition against cruel and unusual
punishment to terms of years is articulated
in the clearly established principle acknowledged by the Court: a sentence
grossly disproportionate to the offense for
which it is imposed is unconstitutional.
See ante, at 1173; Harmelin v. Michigan,
501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d
836 (1991); Solem v. Helm, 463 U.S. 277,
103 S.Ct. 3001, 77 L.Ed.2d 637 (1983);
1133, 63 L.Ed.2d 382 (1980). For the reasons set forth in Justice BREYERs dissent in Ewing v. California, post, 538 U.S.,
at 35, 123 S.Ct. 1179, which I joined, Andrades sentence cannot survive Eighth
Amendment review. His criminal history
is less grave than Ewings, and yet he
received a prison term twice as long for a
less serious triggering offense. To be
sure, this is a habeas case and a prohibition couched in terms as general as gross
S 78disproportion necessarily leaves state
courts with much leeway under the statutory criterion that conditions federal relief
upon finding that a state court unreasonably applied clear law, see 28 U.S.C.
2254(d). This case nonetheless presents
two independent reasons for holding that
the disproportionality review by the state
court was not only erroneous but unreasonable, entitling Andrade to relief. I respectfully dissent accordingly.
The first reason is the holding in Solem,
which happens to be our most recent effort
at proportionality review of recidivist sentencing, the authority of which was not left
in doubt by Harmelin, see 501 U.S., at
998, 111 S.Ct. 2680. Although Solem is
538 U.S. 77
important for its instructions about applying objective proportionality analysis, see
463 U.S., at 290292, 103 S.Ct. 3001, the
case is controlling here because it established a benchmark in applying the general
principle. We specifically held that a sentence of life imprisonment without parole
for uttering a $100 no account check was
disproportionate to the crime, even though
the defendant had committed six prior
nonviolent felonies. In explaining our proportionality review, we contrasted the result with Rummels on the ground that the
life sentence there had included parole eligibility after 12 years, Solem, 463 U.S., at
297, 103 S.Ct. 3001.
The facts here are on all fours with
those of Solem and point to the same
result. Id., at 279281, 103 S.Ct. 3001.
Andrade, like the defendant in Solem, was
a repeat offender who committed theft of
fairly trifling value, some $150, and their
criminal records are comparable, including
burglary (though Andrades were residential), with no violent crimes or crimes
against the person. The respective sentences, too, are strikingly alike. Although
Andrades petty thefts occurred on two
separate occasions, his sentence can only
be understood as punishment for the total
amount he stole. The two thefts were
separated by only two weeks; they involved the same victim; they apparently
constituted parts of a single, continuing
effort to finance drug sales; their seriousness is measured S 79by the dollar value of
the things taken; and the government
charged both thefts in a single indictment.
Cf. United States Sentencing Commission,
Guidelines Manual 3D1.2 (Nov.2002)
(grouping temporally separated counts as
one offense for sentencing purposes). The
state court accordingly spoke of his punishment collectively as well, carrying a 50
year minimum before parole eligibility, see
App. to Pet. for Cert. 77 ([W]e cannot say
the sentence of 50 years to life at issue in
this case is disproportionate), and because
Andrade was 37 years old when sentenced,
the substantial 50year period amounts to
538 U.S. 81
LOCKYER v. ANDRADE
Cite as 123 S.Ct. 1166 (2003)
life without parole. Solem, supra, at 287,

103 S.Ct. 3001 (when considering whether
a punishment is cruel or unusual the
question cannot be considered in the abstract (quoting Robinson v. California,
370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d
758 (1962))); cf. Rummel, supra, at 280
281, 100 S.Ct. 1133 (defendants eligibility
for parole in 12 years informs a proper
assessment of his cruel and unusual punishment claim). The results under the
Eighth Amendment should therefore be
the same in each case. The only ways to
reach a different conclusion are to reject
the practical equivalence of a life sentence
without parole and one with parole eligibility at 87, see ante, at 1174 (Andrade
retains the possibility of parole), or to
discount the continuing authority of Solems example, as the California court did,
see App. to Pet. for Cert. 76 ([T]he current validity of the Solem proportionality
analysis is questionable). The former is
unrealistic; an 87yearold man released
after 50 years behind bars will have no
real life left, if he survives to be released
at all. And the latter, disparaging Solem
as a point of reference on Eighth Amendment analysis, is wrong as a matter of law.
The second reason that relief is required
even under the 2254(d) unreasonable application standard rests on the alternative
way of looking at Andrades 50year sentence as two separate 25year applications
of the three-strikes law, and construing
the challenge here as going to the second,
consecutive 25year minimum term triggered by a petty S 80theft.1 To understand
why it is revealing to look at the sentence
this way, it helps to recall the basic difficulty inherent in proportionality review.
1.
This point is independent of the fact, recognized by the Court, ante, at 1171, that it
remains open to Andrade to appeal his sentence under People v. Garcia, 20 Cal.4th 490,
85 Cal.Rptr.2d 280, 976 P.2d 831 (1999)
(holding trial court may dismiss strikes on a
count-by-count basis; such discretion is consistent with mandatory consecutive sentencing provision).
2.
Implicit in the distinction between future

dangerousness and repunishment for prior
1177
We require the comparison of offense and

penalty to disclose a truly gross disproportionality before the constitutional limit is
passed, in large part because we believe
that
legislatures
are
institutionally
equipped with better judgment than courts
in deciding what penalty is merited by
particular behavior. Solem, supra, at 290,
103 S.Ct. 3001. In this case, however, a
court is substantially aided in its reviewing
function by two determinations made by
the State itself.
The first is the States adoption of a
particular penalogical theory as its principal reason for shutting a three-strikes defendant away for at least 25 years. Although the State alludes in passing to
retribution or deterrence (see Brief for
Petitioner 16, 24; Reply Brief for Petitioner 10), its only serious justification for
the 25year minimum treats the sentence
as a way to incapacitate a given defendant from further crime; the underlying
theory is the need to protect the public
from a danger demonstrated by the prior
record of violent and serious crime. See
Brief for Petitioner 17 (significant danger to society such that [defendant] must
be imprisoned for no less than twenty-five
years to life); id., at 21 (statute carefully tailored to address TTT defendants that
pose the greatest danger); id., at 23
(isolating such a defendant for a substantial period of time); Reply Brief for
Petitioner 11 (If Andrades reasoning
were accepted, however, California would
be precluded from incapacitating him).
See also Rummel, 445 U.S., at 284, 100
S.Ct. 1133 (purpose of a recidivist
S 81statute TTT [is] to segregate).2 The
crimes is the notion that the triggering offense
must, within some degree, be substantial
enough to bear the weight of the sentence it
elicits. As triggering offenses become increasingly minor and recidivist sentences
grow, the sentences advance toward double
jeopardy violations. When defendants are
parking violators or slow readers of borrowed
library books, there is not much room for
belief, even in light of a past criminal record,
that the State is permanently incapacitating
1178
State, in other words has not chosen 25

to life because of the inherent moral or
social reprehensibility of the triggering
offense in isolation; the triggering offense
is treated so seriously, rather, because of
its confirmation of the defendants danger
to society and the need to counter his
threat with incapacitation. As to the
length of incapacitation, the State has
made a second helpful determination, that
the public risk or danger posed by someone with the specified predicate record is
generally addressed by incapacitation for
25 years before parole eligibility. Cal.Penal Code Ann. 667(e)(2)(A)(ii) (West
1999). The three-strikes law, in sum, responds to a condition of the defendant
shown by his prior felony record, his danger to society, and it reflects a judgment
that 25 years of incapacitation prior to
parole eligibility is appropriate when a
defendant exhibiting such a condition
commits another felony.
Whether or not one accepts the States
choice of penalogical policy as constitutionally sound, that policy cannot reaSsonably82
justify the imposition of a consecutive 25
year minimum for a second minor felony
committed soon after the first triggering
offense. Andrade did not somehow become twice as dangerous to society when
he stole the second handful of videotapes;
his dangerousness may justify treating one
minor felony as serious and warranting
long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation.
Since the defendants condition has not
changed between the two closely related
thefts, the incapacitation penalty is not
open to the simple arithmetic of multiplying the punishment by two, without resultthe defendant because of future dangerousness rather than resentencing for past offenses.
That said, I do not question the legitimacy
of repeatedly sentencing a defendant in light
of his criminal record: the Federal Sentencing Guidelines provide a prime example of
how a sentencing scheme may take into account a defendants criminal history without
538 U.S. 81
ing in gross disproportion even under the

States chosen benchmark. Far from attempting a novel penal theory to justify
doubling the sentence, the California Court
of Appeal offered no comment at all as to
the particular penal theory supporting
such a punishment. App. to Pet. for Cert.
7679. Perhaps even more tellingly, no
one could seriously argue that the second
theft of videotapes provided any basis to
think that Andrade would be so dangerous
after 25 years, the date on which the consecutive sentence would begin to run, as to
require at least 25 years more. I know of
no jurisdiction that would add 25 years of
imprisonment simply to reflect the fact
that the two temporally related thefts took
place on two separate occasions, and I am
not surprised that California has found no
such case, not even under its three-strikes
law. Tr. of Oral Arg. 52 (States counsel
acknowledging I have no reference to any
50yeartolife sentences based on two
convictions). In sum, the argument that
repeating a trivial crime justifies doubling
a 25year minimum incapacitation sentence based on a threat to the public does
not raise a seriously debatable point on
which judgments might reasonably differ.
The argument is irrational, and the state
courts acceptance of it in response to a
facially gross disproportion between triggering offense and penalty was unreasonable within the meaning of 2254(d).
This is the rare sentence of demonstrable gross disproportionality, as the California Legislature may well have recognized
when it specifically provided that a prosecutor may move to dismiss or strike a
prior felony conviction in the furtherance
of justice.
Cal.Penal Code Ann.
667(f)(2) (West 1999). In this case, the
resentencing a defendant for past convictions,
Witte v. United States, 515 U.S. 389, 403, 115
S.Ct. 2199, 132 L.Ed.2d 351 (1995) (the triggering offense determines the range of possible sentences, and the past criminal record
affects an enhancement of that sentence).
The point is merely that the triggering offense
must reasonably support the weight of even
the harshest possible sentences.
EWING v. CALIFORNIA
538 U.S. 11
Cite as 123 S.Ct. 1179 (2003)
statutory safeguard failed, and the state

court was left to ensure that the Eighth
Amendment prohibition on grossly disproportionate sentences was met. If Andrades sentence is not grossly disproportionate, the principle has no meaning. The
California courts holding was an unreasonable application of clearly established
precedent.
,
538 U.S. 11, 155 L.Ed.2d 108
Gary Albert EWING, Petitioner,

v.
CALIFORNIA.
No. 016978.
California defendant was convicted in

state court of felony grand theft, and sentenced to term of 25 years to life under
that states three strikes law. The California Court of Appeal, Second Appellate District, 2001 WL 1840666, affirmed sentence,
and the State Supreme Court denied review. Certiorari was granted. The Supreme Court, Justice OConnor, held that
sentence did not violate Eighth Amendments prohibition against cruel and unusual punishment.
Affirmed.
Justice Scalia concurred in result and
filed opinion.
Justice Thomas concurred in result
and filed opinion.
Justice Stevens dissented and filed
opinion in which Justices Souter, Ginsburg,
and Breyer joined.
1179
Justice Breyer dissented and filed

opinion in which Justices Stevens, Souter,
and Ginsburg joined.

strict proportionality between crime and
sentence; rather, it forbids only extreme
sentences that are grossly disproportionate to crime. U.S.C.A. Const.Amend. 8.
Constitution does not mandate adoption of any one penological theory; rather,
sentence can have variety of justifications,
and selection of sentencing rationale is
generally policy choice to be made by state
Sentence of felony grand theft defendant to term of 25 years to life for theft of
three golf clubs, pursuant to Californias
three strikes law, was not grossly disproportionate and thus did not violate Eighth
unusual punishment; sentence was justified
by states public-safety interest in incapacitating and deterring recidivist felons, and
amply supported by defendants long, serious criminal record. (Per Justice OConnor, with the Chief Justice and one Justice
concurring and two Justices concurring in
the result). U.S.C.A. Const.Amend. 8;
Wests
Ann.Cal.Penal
Code
667(e)(2)(A), 1170.12(c)(2)(A).
California trial judge justifiably exercised her discretion in treating golf club
stealers wobbler grand theft offense as
felony rather than misdemeanor for three
strikes sentencing purposes, given defendants long criminal history. (Per Justice
OConnor, with the Chief Justice and one
Justice concurring and two Justices concurring in the result). Wests Ann.Cal.Penal Code 17(b), 489(b).
Miller v. Alabama, 132 S.Ct. 2455 (2012)

183 L.Ed.2d 407, 12 Cal. Daily Op. Serv. 7078, 2012 Daily Journal D.A.R. 8634...

132 S.Ct. 2455
Supreme Court of the United States
Justice Thomas filed a dissenting opinion, in which

Justice Scalia joined.
Evan MILLER, Petitioner

v.
ALABAMA.
Kuntrell Jackson, Petitioner
v.
Ray Hobbs, Director, Arkansas Department of
Correction.
Justice Alito filed a dissenting opinion, in which Justice

Scalia joined.
Nos. 109646, 109647. | Argued March 20, 2012. |

West Headnotes (16)

[1]
Federal Courts
Mode of review and proceedings
Supreme Court, on certiorari review of decision
of state supreme court affirming the dismissal of
defendants state habeas petition alleging that
mandatory imposition of sentence of life without
possibility of parole on defendant, who was
convicted of capital felony murder committed at
age 14, constituted violation of Eighth
Amendment prohibition of cruel and unusual
punishment, would not consider contention
raised by State for first time in Supreme Court
that state law in effect at time of defendants
sentencing allowed trial judge to suspend the
life-without-parole sentence; State had never
raised the contention in state courts, state courts
had treated defendants sentence as mandatory,
and Supreme Court would abide by that
interpretation
of
state
law.
U.S.C.A.
Const.Amend. 8; A.C.A. 54104(b) (2000);
1228403(b)(2) (Repealed).
Synopsis
Background: Following transfer from state juvenile court
to state circuit court and affirmation of transfer, 928 So.2d
1081, defendant was convicted in the Alabama Circuit
Court, Lawrence County, No. CC0608, A. Phillip
Reich II, J., of capital murder committed when he was 14
years old. Defendant appealed his conviction and the
resulting sentence of life in prison without possibility of
parole. The Alabama Court of Criminal Appeals, 63
So.3d 676, affirmed. In another case, after affirmance of a
defendants convictions in Arkansas for capital felony
murder and aggravated robbery committed at age 14, 359
Ark. 87, 194 S.W.3d 757, defendant petitioned for state
habeas relief, challenging his sentence of life in prison
without possibility of parole. The Arkansas Circuit Court,
Jefferson County, dismissed the petition. Defendant
appealed. The Arkansas Supreme Court, S.W.3d
, 2011 WL 478600, affirmed. Certiorari was granted in
each case.
13 Cases that cite this headnote

[Holding:] The Supreme Court, Justice Kagan, held that
mandatory life imprisonment without parole for those
under the age of 18 at the time of their crimes violates the
Eighth Amendments prohibition on cruel and unusual
punishments.
Justice Breyer filed a concurring opinion, in which Justice
Sotomayor joined.
Chief Justice Roberts filed a dissenting opinion, in which
Justices Scalia, Thomas, and Alito joined.
[2]
Sentencing and Punishment

Excessiveness and Proportionality of
Sentence
Proportionality
The Eighth Amendments prohibition of cruel
and unusual punishment guarantees individuals
the right not to be subjected to excessive
sanctions, which right flows from the basic
precept of justice that punishment for crime

should be graduated and proportioned to both

the offender and the offense. U.S.C.A.
Const.Amend. 8.

Nature or Degree of Offense
Imposing the death penalty for nonhomicide
crimes against individuals, or imposing it on
mentally retarded defendants, violates the
Eighth Amendment. U.S.C.A. Const.Amend. 8.
[3]

Proportionality
The concept of proportionality of punishment is
central to the Eighth Amendment. U.S.C.A.
Const.Amend. 8.
[7]

Juveniles
The Eighth Amendment bars capital punishment
for children. U.S.C.A. Const.Amend. 8.
[4]

Proportionality
The concept of proportionality of punishment,
which is central to the Eighth Amendment, is
viewed less through a historical prism than
according to the evolving standards of decency
that mark the progress of a maturing society.
[8]

Juvenile offenders
The Eighth Amendment prohibits a sentence of
life without the possibility of parole for a child
who committed a nonhomicide offense.
[5]
[6]
Infants
Duration or term
Juvenile offenders
[9]
Infants
Factors and considerations in general
Mandatory life without parole for those under

the age of 18 at the time of their crimes violates
the Eighth Amendments prohibition on cruel
and
unusual
punishments.
U.S.C.A.
Const.Amend. 8.
Children are constitutionally different from

adults for purposes of sentencing, and because
juveniles have diminished culpability and
greater prospects for reform, they are less
deserving of the most severe punishments.

Mentally retarded persons
[10]
Infants
Factors and considerations in general

The distinctive attributes of youth diminish the

penological justifications for imposing the
harshest sentences on juvenile offenders, even
when they commit terrible crimes.
[14]
In light of childrens diminished culpability and

heightened capacity for change, appropriate
occasions for sentencing juveniles to life in
prison without possibility of parole will be
uncommon, and that is especially so because of
the great difficulty of distinguishing at this early
age between the juvenile offender whose crime
reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime
reflects irreparable corruption. U.S.C.A.
Const.Amend. 8.
[11]

Juvenile offenders

Juvenile offenders
The characteristics of youth, and the way they
weaken rationales for punishment, can render a
life-without-parole sentence disproportionate
punishment
for
a
juvenile.
U.S.C.A.
Const.Amend. 8.

[15]
[12]

Juvenile offenders
Homicide
Murder
Juvenile offenders
While a sentencers ability to impose a sentence
of life imprisonment without possibility of
parole on a juvenile convicted of homicide is not
foreclosed, the sentencer must take into account
how children are different, and how those
differences
counsel
against
irrevocably
sentencing them to a lifetime in prison. U.S.C.A.
Const.Amend. 8.
Imposition of a States most severe penalties on

juvenile offenders cannot proceed as though
they were not children. U.S.C.A. Const.Amend.
8.

[13]

Mitigating circumstances in general
Evidence in mitigation in general
Capital defendants must have an opportunity to
advance, and the judge or jury a chance to
assess, any mitigating factors, so that the death
penalty is reserved only for the most culpable
defendants committing the most serious
offenses. U.S.C.A. Const.Amend. 8.
[16]

Nature or Degree of Offense
Factors Related to Offender
Limiting a mandatory death penalty law to
particular kinds of murder cannot cure the laws
constitutional vice of disregarding the
circumstances of the particular offense and the
character and propensities of the offender.

2463 2475.
West Codenotes
Limited on Constitutional Grounds
LSAR.S. 14:30(C), 14:30.1(B)V.T.C.A., Penal Code
12.31(a)Code 1975, 13A545(f)Wests A.C.A. 54
104(b)Code 1975, 13A62(c)A.R.S. 13
752C.G.S.A. 53a35a(1)11 Del.C. 4209(a)Wests
F.S.A. 775.082(1)HRS 706656(1) (1993)I.C. 18
4004M.C.L.A. 791.234(6)(a)M.S.A. 609.106, subd.
2Neb.Rev.St. 292522RSA 630:1a(III)18 Pa.C.S.A.
1102(a, b)61 Pa.C.S.A. 6137(a)(1)SDCL 2261(1),
2415413 V.S.A. 2311(c)Wests RCWA 10.95.030(1)
*2457 Syllabus*
In each of these cases, a 14yearold was convicted of
murder and sentenced to a mandatory term of life
imprisonment without the possibility of parole. In No. 10
9647, petitioner Jackson accompanied two other boys to a
video store to commit a robbery; on the way to the store,
he learned that one of the boys was carrying a shotgun.
Jackson stayed outside the store for most of the robbery,
but after he entered, one of his co-conspirators shot and
killed the store clerk. Arkansas charged Jackson as an
adult with capital felony murder and aggravated robbery,
and a jury convicted him of both crimes. The trial court
imposed a statutorily mandated sentence of life
imprisonment without the possibility of parole. Jackson
filed a state habeas petition, arguing that a mandatory lifewithout-parole term for a 14yearold violates the Eighth
Amendment. Disagreeing, the court granted the States
motion to dismiss. The Arkansas Supreme Court
affirmed.
In No. 109646, petitioner Miller, along with a friend,
beat Millers neighbor and set fire to his trailer after an
evening of drinking and drug use. The neighbor died.
Miller was initially charged as a juvenile, but his case was
removed to adult court, where he was charged with
murder in the course of arson. A jury found Miller guilty,
and the trial court imposed a statutorily mandated
punishment of life without parole. The Alabama Court of
Criminal Appeals affirmed, holding that Millers sentence
was not overly harsh when compared to his crime, and
that its mandatory nature was permissible under the
Eighth Amendment.
Held: The Eighth Amendment forbids a sentencing
scheme that mandates *2458 life in prison without
possibility of parole for juvenile homicide offenders. Pp.
(a) The Eighth Amendments prohibition of cruel and

unusual punishment guarantees individuals the right not
to be subjected to excessive sanctions. Roper v.
Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d
1. That right flows from the basic precept of justice that
punishment for crime should be graduated and
proportioned to both the offender and the offense. Ibid.
Two strands of precedent reflecting the concern with
proportionate punishment come together here. The first
has adopted categorical bans on sentencing practices
based on mismatches between the culpability of a class of
offenders and the severity of a penalty. See, e.g., Kennedy
v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d
525. Several cases in this group have specially focused on
juvenile offenders, because of their lesser culpability.
Thus, Roper v. Simmons held that the Eighth Amendment
bars capital punishment for children, and Graham v.
Florida, 560 U.S. , 130 S.Ct. 2011, 176 L.Ed.2d 825,
concluded that the Amendment prohibits a sentence of life
without the possibility of parole for a juvenile convicted
of a nonhomicide offense. Graham further likened life
without parole for juveniles to the death penalty, thereby
evoking a second line of cases. In those decisions, this
Court has required sentencing authorities to consider the
characteristics of a defendant and the details of his
offense before sentencing him to death. See, e.g.,
Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978,
49 L.Ed.2d 944 (plurality opinion). Here, the confluence
of these two lines of precedent leads to the conclusion that
mandatory life without parole for juveniles violates the
Eighth Amendment.
As to the first set of cases: Roper and Graham establish
that children are constitutionally different from adults for
sentencing purposes. Their lack of maturity and
underdeveloped sense of responsibility lead to
recklessness, impulsivity, and heedless risk-taking. Roper,
543 U.S., at 569, 125 S.Ct. 1183. They are more
vulnerable ... to negative influences and outside
pressures, including from their family and peers; they
have limited contro[l] over their own environment and
lack the ability to extricate themselves from horrific,
crime-producing settings. Ibid. And because a childs
character is not as well formed as an adults, his traits
are less fixed and his actions are less likely to be
evidence of irretrievabl[e] deprav[ity]. Id., at 570, 125
S.Ct. 1183. Roper and Graham emphasized that the
distinctive attributes of youth diminish the penological
justifications for imposing the harshest sentences on
juvenile offenders, even when they commit terrible

crimes.
While Graham s flat ban on life without parole was for
nonhomicide crimes, nothing that Graham said about
children is crime-specific. Thus, its reasoning implicates
any life-without-parole sentence for a juvenile, even as its
categorical bar relates only to nonhomicide offenses.
Most fundamentally, Graham insists that youth matters in
determining the appropriateness of a lifetime of
incarceration without the possibility of parole. The
mandatory penalty schemes at issue here, however,
prevent the sentencer from considering youth and from
assessing whether the laws harshest term of
imprisonment proportionately punishes a juvenile
offender. This contravenes Graham s (and also Roper s)
foundational principle: that imposition of a States most
severe penalties on juvenile offenders cannot proceed as
though they were not children.
*2459 Graham also likened life-without-parole sentences
for juveniles to the death penalty. That decision
recognized that life-without-parole sentences share some
characteristics with death sentences that are shared by no
other sentences. 560 U.S., at , 130 S.Ct., at 2027.
And it treated life without parole for juveniles like this
Courts cases treat the death penalty, imposing a
categorical bar on its imposition for nonhomicide
offenses. By likening life-without-parole sentences for
juveniles to the death penalty, Graham makes relevant
this Courts cases demanding individualized sentencing in
capital cases. In particular, those cases have emphasized
that sentencers must be able to consider the mitigating
qualities of youth. In light of Graham s reasoning, these
decisions also show the flaws of imposing mandatory lifewithout-parole sentences on juvenile homicide offenders.
Pp. 2463 2469.
not be so for children. See Roper, 543 U.S. 551, 125 S.Ct.
1183, 161 L.Ed.2d 1; Graham, 560 U.S. , 130 S.Ct.
2011.
The States next contend that mandatory life-withoutparole terms for juveniles cannot be unconstitutional
because 29 jurisdictions impose them on at least some
children convicted of murder. In considering categorical
bars to the death penalty and life without parole, this
Court asks as part of the analysis whether legislative
enactments and actual sentencing practices show a
national consensus against a sentence for a particular class
of offenders. But where, as here, this Court does not
categorically bar a penalty, but instead requires only that a
sentencer follow a certain process, this Court has not
scrutinized or relied on legislative enactments in the same
way. See, e.g., Sumner v. Shuman, 483 U.S. 66, 107 S.Ct.
2716, 97 L.Ed.2d 56.
(b) The counterarguments of Alabama and Arkansas are

unpersuasive. Pp. 2469 2475.
In any event, the objective indicia of societys

standards, Graham, 560 U.S., at , 130 S.Ct., at
2022, that the States offer do not distinguish these cases
from others holding that a sentencing practice violates the
Eighth Amendment. Fewer States impose mandatory lifewithout-parole sentences on juvenile homicide offenders
than authorized the penalty (life-without-parole for
nonhomicide offenders) that this Court invalidated in
Graham. And as Graham and Thompson v. Oklahoma,
487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702, explain,
simply counting legislative enactments can present a
distorted view. In those cases, as here, the relevant
penalty applied to juveniles based on two separate
provisions: One allowed the transfer of certain juvenile
offenders to adult court, while another set out penalties
for any and all individuals tried there. In those
circumstances, this Court reasoned, it was impossible to
say whether a legislature had endorsed a given penalty for
children (or would do so if presented with the choice).
The same is true here. Pp. 2469 2474.
(1) The States first contend that Harmelin v. Michigan,

501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836,
forecloses a holding that mandatory life-without-parole
sentences for juveniles violate the Eighth Amendment.
Harmelin declined to extend the individualized sentencing
requirement to noncapital cases because of the
qualitative difference between death and all other
penalties. Id., at 1006, 111 S.Ct. 2680 (KENNEDY, J.,
concurring in part and concurring in judgment). But
Harmelin had nothing to do with children, and did not
purport to apply to juvenile offenders. Indeed, since
Harmelin, this Court has held on multiple occasions that
sentencing practices that are permissible for adults may
*2460 (2) The States next argue that courts and

prosecutors sufficiently consider a juvenile defendants
age, as well as his background and the circumstances of
his crime, when deciding whether to try him as an adult.
But this argument ignores that many States use mandatory
transfer systems. In addition, some lodge the decision in
the hands of the prosecutors, rather than courts. And even
where judges have transfer-stage discretion, it has limited
utility, because the decisionmaker typically will have only
partial information about the child or the circumstances of
his offense. Finally, because of the limited sentencing
options in some juvenile courts, the transfer decision may
present a choice between a light sentence as a juvenile

and standard sentencing as an adult. It cannot substitute

for discretion at post-trial sentencing. Pp. 2473 2475.
No. 109646, 63 So.3d 676, and No. 109647, 2011 Ark.
49, S.W.3d , reversed and remanded.
KAGAN, J., delivered the opinion of the Court, in which
KENNEDY,
GINSBURG,
BREYER,
and
SOTOMAYOR, JJ., joined. BREYER, J., filed a
concurring opinion, in which SOTOMAYOR, J., joined.
ROBERTS, C.J., filed a dissenting opinion, in which
SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS,
J., filed a dissenting opinion, in which SCALIA, J.,
joined. ALITO, J., filed a dissenting opinion, in which
SCALIA, J., joined.
Attorneys and Law Firms
Bryan A. Stevenson, Montgomery, AL, for Petitioner.
John C. Neiman, Jr., Solicitor General, for Respondent.
Bryan A. Stevenson, Counsel of Record, Randall S.
Susskind, Alicia A. DAddario, Equal Justice Initiative,
Montgomery, AL, for Petitioner.
John Porter, Clay Crenshaw, Henry Johnson, Stephanie
Reiland, Jess R. Nix, Assistant Attorneys General, Luther
Strange, Attorney General, John C. Neiman, Jr., Solicitor
General, Counsel of Record, Prim F. Escalona, Andrew L.
Brasher, Deputy Solicitors General, Office of the
Alabama Attorney General, Montgomery, AL, for
Respondent.
Opinion
Justice KAGAN delivered the opinion of the Court.
The two 14yearold offenders in these cases were
convicted of murder and sentenced to life imprisonment
without the possibility of parole. In neither case did the
sentencing authority have any discretion to impose a
different punishment. State law mandated that each
juvenile die in prison even if a judge or jury would have
thought that his youth and its attendant characteristics,
along with the nature of his crime, made a lesser sentence
(for example, life with the possibility of parole) more
appropriate. Such a scheme prevents those meting out
punishment from considering a juveniles lessened
culpability and greater capacity for change, Graham v.
Florida, 560 U.S. , , , 130 S.Ct. 2011,
20262027, 20292030, 176 L.Ed.2d 825 (2010), and
runs afoul of our cases requirement of individualized

sentencing for defendants facing the most serious
penalties. We therefore hold that mandatory life without
parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendments prohibition on
cruel and unusual punishments.
*2461 I
A
In November 1999, petitioner Kuntrell Jackson, then 14
years old, and two other boys decided to rob a video store.
En route to the store, Jackson learned that one of the boys,
Derrick Shields, was carrying a sawed-off shotgun in his
coat sleeve. Jackson decided to stay outside when the two
other boys entered the store. Inside, Shields pointed the
gun at the store clerk, Laurie Troup, and demanded that
she give up the money. Jackson v. State, 359 Ark. 87,
89, 194 S.W.3d 757, 759 (2004) (internal quotation marks
omitted). Troup refused. A few moments later, Jackson
went into the store to find Shields continuing to demand
money. At trial, the parties disputed whether Jackson
warned Troup that [w]e aint playin, or instead told his
friends, I thought you all was playin. Id., at 91, 194
S.W.3d, at 760 (internal quotation marks omitted). When
Troup threatened to call the police, Shields shot and killed
her. The three boys fled empty-handed. See id., at 8992,
194 S.W.3d, at 758760.
Arkansas law gives prosecutors discretion to charge 14
yearolds as adults when they are alleged to have
committed certain serious offenses. See Ark.Code Ann.
927318(c)(2) (1998). The prosecutor here exercised
that authority by charging Jackson with capital felony
murder and aggravated robbery. Jackson moved to
transfer the case to juvenile court, but after considering
the alleged facts of the crime, a psychiatrists
examination, and Jacksons juvenile arrest history
(shoplifting and several incidents of car theft), the trial
court denied the motion, and an appellate court affirmed.
See Jackson v. State, No. 02535, 2003 WL 193412, *1
(Ark.App., Jan. 29, 2003); 927318(d), (e). A jury
later convicted Jackson of both crimes. Noting that in
view of [the] verdict, theres only one possible
punishment, the judge sentenced Jackson to life without
parole. App. in No. 109647, p. 55 (hereinafter Jackson
App.); see Ark.Code Ann. 54104(b) (1997) (A

defendant convicted of capital murder or treason shall be

sentenced to death or life imprisonment without parole).1
Jackson did not challenge the sentence on appeal, and the
Arkansas Supreme Court affirmed the convictions. See
359 Ark. 87, 194 S.W.3d 757.
[1]
Following Roper v. Simmons, 543 U.S. 551, 125 S.Ct.

1183, 161 L.Ed.2d 1 (2005), in which this Court
invalidated the death penalty for all juvenile offenders
under the age of 18, Jackson filed a state petition for
habeas corpus. He argued, based on Roper s reasoning,
that a mandatory sentence of life without parole for a 14
yearold also violates the Eighth Amendment. The circuit
court rejected that argument and granted the States
motion to dismiss. See Jackson App. 7276. While that
ruling was on appeal, this Court held in Graham v.
Florida that life without parole violates the Eighth
Amendment when imposed on juvenile nonhomicide
offenders. After the parties filed briefs addressing that
decision, the Arkansas Supreme Court affirmed the
dismissal of Jacksons petition. See Jackson v. Norris,
2011 Ark. 49, S.W.3d . The majority found that
Roper and Graham were narrowly tailored to their
contexts: death-penalty cases involving a juvenile and
life-imprisonment-without-parole cases for nonhomicide
offenses involving a juvenile. Id., at 5, S.W.3d, at
. Two justices dissented. They noted that Jackson
*2462 was not the shooter and that any evidence of
intent to kill was severely lacking. Id., at 10,
S.W.3d, at (Danielson, J., dissenting). And they
argued that Jacksons mandatory sentence ran afoul of
Graham s admonition that [a]n offenders age is
relevant to the Eighth Amendment, and criminal
procedure laws that fail to take defendants youthfulness
into account at all would be flawed. Id., at 1011,
S.W.3d, at (quoting Graham, 560 U.S., at , 130
S.Ct., at 2031).2
B
Like Jackson, petitioner Evan Miller was 14 years old at
the time of his crime. Miller had by then been in and out
of foster care because his mother suffered from
alcoholism and drug addiction and his stepfather abused
him. Miller, too, regularly used drugs and alcohol; and he
had attempted suicide four times, the first when he was
six years old. See E.J.M. v. State, 928 So.2d 1077, 1081
(Ala.Crim.App.2004) (Cobb, J., concurring in result);
App. in No. 109646, pp. 2628 (hereinafter Miller
App.).
One night in 2003, Miller was at home with a friend,

Colby Smith, when a neighbor, Cole Cannon, came to
make a drug deal with Millers mother. See 6 Record in
No. 109646, p. 1004. The two boys followed Cannon
back to his trailer, where all three smoked marijuana and
played drinking games. When Cannon passed out, Miller
stole his wallet, splitting about $300 with Smith. Miller
then tried to put the wallet back in Cannons pocket, but
Cannon awoke and grabbed Miller by the throat. Smith hit
Cannon with a nearby baseball bat, and once released,
Miller grabbed the bat and repeatedly struck Cannon with
it. Miller placed a sheet over Cannons head, told him I
am God, Ive come to take your life, and delivered one
more blow. Miller v. State, 63 So.3d 676, 689
(Ala.Crim.App.2010). The boys then retreated to Millers
trailer, but soon decided to return to Cannons to cover up
evidence of their crime. Once there, they lit two fires.
Cannon eventually died from his injuries and smoke
inhalation. See id., at 683685, 689.
Alabama law required that Miller initially be charged as a
juvenile, but allowed the District Attorney to seek
removal of the case to adult court. See Ala.Code 1215
34 (1977). The D.A. did so, and the juvenile court agreed
to the transfer after a hearing. Citing the nature of the
crime, Millers mental maturity, and his prior juvenile
offenses (truancy and criminal mischief), the Alabama
Court of Criminal Appeals affirmed. E.J.M. v. State, No.
CR030915, pp. 57 (Aug. 27, 2004) (unpublished
memorandum).3 The State accordingly *2463 charged
Miller as an adult with murder in the course of arson. That
crime (like capital murder in Arkansas) carries a
mandatory minimum punishment of life without parole.
See Ala.Code 13A540(9), 13A62(c) (1982).
Relying in significant part on testimony from Smith, who
had pleaded to a lesser offense, a jury found Miller guilty.
He was therefore sentenced to life without the possibility
of parole. The Alabama Court of Criminal Appeals
affirmed, ruling that life without parole was not overly
harsh when compared to the crime and that the
mandatory nature of the sentencing scheme was
permissible under the Eighth Amendment. 63 So.3d, at
690; see id., at 686691. The Alabama Supreme Court
denied review.
We granted certiorari in both cases, see 565 U.S. ,
S.Ct. , L.Ed.2d (2011) (No. 109646);
565 U.S. , S.Ct. , L.Ed.2d (2011)
(No. 109647), and now reverse.

II
[2] [3] [4]
The Eighth Amendments prohibition of cruel and

unusual punishment guarantees individuals the right not
to be subjected to excessive sanctions. Roper, 543 U.S.,
at 560, 125 S.Ct. 1183. That right, we have explained,
flows from the basic precept of justice that punishment
for crime should be graduated and proportioned to both
the offender and the offense. Ibid. (quoting Weems v.
United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed.
793 (1910)). As we noted the last time we considered lifewithout-parole sentences imposed on juveniles, [t]he
concept of proportionality is central to the Eighth
Amendment. Graham, 560 U.S., at , 130 S.Ct., at
2021. And we view that concept less through a historical
prism than according to the evolving standards of
decency that mark the progress of a maturing society.
Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86,
101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality
opinion)).
[5] [6] [7] [8]
The cases before us implicate two strands of

precedent reflecting our concern with proportionate
punishment. The first has adopted categorical bans on
sentencing practices based on mismatches between the
culpability of a class of offenders and the severity of a
penalty. See Graham, 560 U.S., at , 130 S.Ct., at
20222023 (listing cases). So, for example, we have held
that imposing the death penalty for nonhomicide crimes
against individuals, or imposing it on mentally retarded
defendants, violates the Eighth Amendment. See Kennedy
v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d
525 (2008); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002). Several of the cases in this
group have specially focused on juvenile offenders,
because of their lesser culpability. Thus, Roper held that
the Eighth Amendment bars capital punishment for
children, and Graham concluded that the Amendment
also prohibits a sentence of life without the possibility of
parole for a child who committed a nonhomicide offense.
Graham further likened life without parole for juveniles
to the death penalty itself, thereby evoking a second line
of our precedents. In those cases, we have prohibited
mandatory imposition of capital punishment, requiring
that sentencing authorities consider the characteristics of a
defendant and the details of his *2464 offense before
sentencing him to death. See Woodson v. North Carolina,
428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)
(plurality opinion); Lockett v. Ohio, 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978). Here, the confluence
of these two lines of precedent leads to the conclusion that
mandatory life-without-parole sentences for juveniles
violate the Eighth Amendment.4

[9]
To start with the first set of cases: Roper and Graham

establish that children are constitutionally different from
adults for purposes of sentencing. Because juveniles have
diminished culpability and greater prospects for reform,
we explained, they are less deserving of the most severe
punishments. Graham, 560 U.S., at , 130 S.Ct., at
2026. Those cases relied on three significant gaps
between juveniles and adults. First, children have a
lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and
heedless risk-taking. Roper, 543 U.S., at 569, 125 S.Ct.
1183. Second, children are more vulnerable ... to
negative influences and outside pressures, including
from their family and peers; they have limited contro[l]
over their own environment and lack the ability to
extricate themselves from horrific, crime-producing
settings. Ibid. And third, a childs character is not as well
formed as an adults; his traits are less fixed and his
actions less likely to be evidence of irretrievabl[e]
deprav[ity]. Id., at 570, 125 S.Ct. 1183.
Our decisions rested not only on common senseon what
any parent knowsbut on science and social science as
well. Id., at 569, 125 S.Ct. 1183. In Roper, we cited
studies showing that [o]nly a relatively small
proportion of adolescents who engage in illegal activity
develop entrenched patterns of problem behavior.
Id., at 570, 125 S.Ct. 1183 (quoting Steinberg & Scott,
Less Guilty by Reason of Adolescence: Developmental
Immaturity, Diminished Responsibility, and the Juvenile
Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)).
And in Graham, we noted that developments in
psychology and brain science continue to show
fundamental differences between juvenile and adult
mindsfor example, in parts of the brain involved in
behavior control. 560 U.S., at , 130 S.Ct., at 2026.5
We reasoned that those findings *2465 of transient
rashness, proclivity for risk, and inability to assess
consequencesboth lessened a childs moral
culpability and enhanced the prospect that, as the years
go by and neurological development occurs, his
deficiencies will be reformed. Id., at , 130 S.Ct.,
at 2027 (quoting Roper, 543 U.S., at 570, 125 S.Ct. 1183).
[10]
Roper and Graham emphasized that the distinctive

attributes of youth diminish the penological justifications
for imposing the harshest sentences on juvenile offenders,
even when they commit terrible crimes. Because [t]he
heart of the retribution rationale relates to an offenders
blameworthiness, the case for retribution is not as
strong with a minor as with an adult. Graham, 560

U.S., at , 130 S.Ct., at 2028 (quoting Tison v.

Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d
127 (1987); Roper, 543 U.S., at 571, 125 S.Ct. 1183). Nor
can deterrence do the work in this context, because the
same characteristics that render juveniles less culpable
than adults their immaturity, recklessness, and
impetuositymake them less likely to consider potential
punishment. Graham, 560 U.S., at , 130 S.Ct., at
2028 (quoting Roper, 543 U.S., at 571, 125 S.Ct. 1183).
Similarly, incapacitation could not support the lifewithout-parole sentence in Graham : Deciding that a
juvenile offender forever will be a danger to society
would require mak[ing] a judgment that [he] is
incorrigiblebut incorrigibility is inconsistent with
youth. 560 U.S., at , 130 S.Ct., at 2029 (quoting
Workman v. Commonwealth, 429 S.W.2d 374, 378
(Ky.App.1968)). And for the same reason, rehabilitation
could not justify that sentence. Life without parole
forswears altogether the rehabilitative ideal. Graham,
560 U.S., at , 130 S.Ct., at 2030. It reflects an
irrevocable judgment about [an offenders] value and
place in society, at odds with a childs capacity for
change. Ibid.
Graham concluded from this analysis that life-withoutparole sentences, like capital punishment, may violate the
Eighth Amendment when imposed on children. To be
sure, Graham s flat ban on life without parole applied
only to nonhomicide crimes, and the Court took care to
distinguish those offenses from murder, based on both
moral culpability and consequential harm. See id., at
, 130 S.Ct., at 2027. But none of what it said about
childrenabout their distinctive (and transitory) mental
traits and environmental vulnerabilitiesis crimespecific. Those features are evident in the same way, and
to the same degree, when (as in both cases here) a botched
robbery turns into a killing. So Graham s reasoning
implicates any life-without-parole sentence imposed on a
juvenile, even as its categorical bar relates only to
nonhomicide offenses.
[11]
Most fundamentally, Graham insists that youth

matters in determining the appropriateness of a lifetime of
incarceration without the possibility of parole. In the
circumstances there, juvenile status precluded a lifewithout-parole sentence, even though an adult could
receive it for a similar crime. And in other contexts as
well, the characteristics of youth, and the *2466 way they
weaken rationales for punishment, can render a lifewithout-parole sentence disproportionate. Cf. id., at ,
130 S.Ct., at 20282032 (generally doubting the
penological justifications for imposing life without parole
on juveniles). An offenders age, we made clear in
Graham, is relevant to the Eighth Amendment, and so

criminal procedure laws that fail to take defendants
youthfulness into account at all would be flawed. Id., at
, 130 S.Ct., at 2031. THE CHIEF JUSTICE,
concurring in the judgment, made a similar point.
Although rejecting a categorical bar on life-withoutparole sentences for juveniles, he acknowledged Roper
s conclusion that juveniles are typically less culpable
than adults, and accordingly wrote that an offenders
juvenile status can play a central role in considering a
sentences proportionality. Id., at , 130 S.Ct., at
2039; see id., at , 130 S.Ct., at 2042 (Grahams
youth is one factor, among others, that should be
considered in deciding whether his punishment was
unconstitutionally excessive).6
[12]
But the mandatory penalty schemes at issue here

prevent the sentencer from taking account of these central
considerations. By removing youth from the balanceby
subjecting a juvenile to the same life-without-parole
sentence applicable to an adultthese laws prohibit a
sentencing authority from assessing whether the laws
harshest term of imprisonment proportionately punishes a
juvenile offender. That contravenes Graham s (and also
Roper s) foundational principle: that imposition of a
States most severe penalties on juvenile offenders cannot
proceed as though they were not children.
And Graham makes plain these mandatory schemes
defects in another way: by likening life-without-parole
sentences imposed on juveniles to the death penalty itself.
Life-without-parole terms, the Court wrote, share some
characteristics with death sentences that are shared by no
other sentences. 560 U.S., at , 130 S.Ct., at 2027.
Imprisoning an offender until he dies alters the remainder
of his life by a forfeiture that is irrevocable. Ibid. (citing
Solem v. Helm, 463 U.S. 277, 300301, 103 S.Ct. 3001,
77 L.Ed.2d 637 (1983)). And this lengthiest possible
incarceration is an especially harsh punishment for a
juvenile, because he will almost inevitably serve more
years and a greater percentage of his life in prison than an
adult offender. Graham, 560 U.S., at , 130 S.Ct., at
2028. The penalty when imposed on a teenager, as
compared with an older person, is therefore the same ...
in name only. Id., at , 130 S.Ct., at 2028. All of that
suggested a distinctive set of legal rules: In part because
we viewed this ultimate penalty for juveniles as akin to
the death penalty, we treated it similarly to that most
severe punishment. We imposed a categorical ban on the
sentences use, in a way unprecedented for a term of
imprisonment. See id., at , 130 S.Ct., at 2022; id., at
, 130 S.Ct., at 2046 (THOMAS, J., dissenting) (For
the first time in its history, the Court declares an entire

class of offenders immune from a noncapital sentence

using the categorical approach it *2467 previously
reserved for death penalty cases alone). And the bar we
adopted mirrored a proscription first established in the
death penalty contextthat the punishment cannot be
imposed for any nonhomicide crimes against individuals.
See Kennedy, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d
525; Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53
L.Ed.2d 982 (1977).
[13]
That correspondenceGraham s [t]reat[ment] [of]

juvenile life sentences as analogous to capital
punishment, 560 U.S., at , 130 S.Ct., at 20382039
(ROBERTS, C.J., concurring in judgment)makes
relevant here a second line of our precedents, demanding
individualized sentencing when imposing the death
penalty. In Woodson, 428 U.S. 280, 96 S.Ct. 2978, 49
L.Ed.2d 944, we held that a statute mandating a death
sentence for first-degree murder violated the Eighth
Amendment. We thought the mandatory scheme flawed
because it gave no significance to the character and
record of the individual offender or the circumstances of
the offense, and exclud[ed] from consideration ... the
possibility of compassionate or mitigating factors. Id., at
304, 96 S.Ct. 2978. Subsequent decisions have elaborated
on the requirement that capital defendants have an
opportunity to advance, and the judge or jury a chance to
assess, any mitigating factors, so that the death penalty is
reserved only for the most culpable defendants
committing the most serious offenses. See, e.g., Sumner v.
Shuman, 483 U.S. 66, 7476, 107 S.Ct. 2716, 97 L.Ed.2d
56 (1987); Eddings v. Oklahoma, 455 U.S. 104, 110112,
102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett, 438 U.S., at
Of special pertinence here, we insisted in these rulings
that a sentencer have the ability to consider the
mitigating qualities of youth. Johnson v. Texas, 509
U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).
Everything we said in Roper and Graham about that stage
of life also appears in these decisions. As we observed,
youth is more than a chronological fact. Eddings, 455
U.S., at 115, 102 S.Ct. 869. It is a time of immaturity,
irresponsibility, impetuousness[,] and recklessness.
Johnson, 509 U.S., at 368, 113 S.Ct. 2658. It is a moment
and condition of life when a person may be most
susceptible to influence and to psychological damage.
Eddings, 455 U.S., at 115, 102 S.Ct. 869. And its
signature qualities are all transient. Johnson, 509
U.S., at 368, 113 S.Ct. 2658. Eddings is especially on
point. There, a 16yearold shot a police officer pointblank and killed him. We invalidated his death sentence
because the judge did not consider evidence of his
neglectful and violent family background (including his

mothers drug abuse and his fathers physical abuse) and
his emotional disturbance. We found that evidence
particularly relevantmore so than it would have been
in the case of an adult offender. 455 U.S., at 115, 102
S.Ct. 869. We held: [J]ust as the chronological age of a
minor is itself a relevant mitigating factor of great weight,
so must the background and mental and emotional
development of a youthful defendant be duly considered
in assessing his culpability. Id., at 116, 102 S.Ct. 869.
In light of Graham s reasoning, these decisions too show
the flaws of imposing mandatory life-without-parole
sentences on juvenile homicide offenders. Such
mandatory penalties, by their nature, preclude a sentencer
from taking account of an offenders age and the wealth
of characteristics and circumstances attendant to it. Under
these schemes, every juvenile will receive the same
sentence as every otherthe 17yearold and the 14
yearold, the shooter and the accomplice, the child from a
stable household and the child from *2468 a chaotic and
abusive one. And still worse, each juvenile (including
these two 14yearolds) will receive the same sentence as
the vast majority of adults committing similar homicide
offensesbut really, as Graham noted, a greater sentence
than those adults will serve.7 In meting out the death
penalty, the elision of all these differences would be
strictly forbidden. And once again, Graham indicates that
a similar rule should apply when a juvenile confronts a
sentence of life (and death) in prison.
So Graham and Roper and our individualized sentencing
cases alike teach that in imposing a States harshest
penalties, a sentencer misses too much if he treats every
child as an adult. To recap: Mandatory life without parole
for a juvenile precludes consideration of his chronological
age and its hallmark featuresamong them, immaturity,
impetuosity, and failure to appreciate risks and
consequences. It prevents taking into account the family
and home environment that surrounds himand from
which he cannot usually extricate himselfno matter
how brutal or dysfunctional. It neglects the circumstances
of the homicide offense, including the extent of his
participation in the conduct and the way familial and peer
pressures may have affected him. Indeed, it ignores that
he might have been charged and convicted of a lesser
offense if not for incompetencies associated with youth
for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys. See, e.g., Graham,
560 U.S., at , 130 S.Ct., at 2032 ([T]he features that
distinguish juveniles from adults also put them at a
significant disadvantage in criminal proceedings); J.D.B.

v. North Carolina, 564 U.S. , , 131 S.Ct. 2394,

24002401, 180 L.Ed.2d 310 (2011) (discussing
childrens responses to interrogation). And finally, this
mandatory punishment disregards the possibility of
rehabilitation even when the circumstances most suggest
it.
Both cases before us illustrate the problem. Take
Jacksons first. As noted earlier, Jackson did not fire the
bullet that killed Laurie Troup; nor did the State argue
that he intended her death. Jacksons conviction was
instead based on an aiding-and-abetting theory; and the
appellate court affirmed the verdict only because the jury
could have believed that when Jackson entered the store,
he warned Troup that [w]e aint playin, rather than told
his friends that I thought you all was playin. See 359
Ark., at 9092, 194 S.W.3d, at 759760; supra, at 2461.
To be sure, Jackson learned on the way to the video store
that his friend Shields was carrying a gun, but his age
could well have affected his calculation of the risk that
posed, as well as his willingness to walk away at that
point. All these circumstances go to Jacksons culpability
for the offense. See Graham, 560 U.S., at , 130 S.Ct.,
at 2027 ([W]hen compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a
twice diminished moral culpability). And so too does
Jacksons family background and immersion in violence:
Both his mother and his grandmother had previously shot
other individuals. See Record in No. 109647, *2469 pp.
8082. At the least, a sentencer should look at such facts
before depriving a 14yearold of any prospect of release
from prison.
That is true also in Millers case. No one can doubt that
he and Smith committed a vicious murder. But they did it
when high on drugs and alcohol consumed with the adult
victim. And if ever a pathological background might have
contributed to a 14yearolds commission of a crime, it
is here. Millers stepfather physically abused him; his
alcoholic and drug-addicted mother neglected him; he had
been in and out of foster care as a result; and he had tried
to kill himself four times, the first when he should have
been in kindergarten. See 928 So.2d, at 1081 (Cobb, J.,
concurring in result); Miller App. 2628; supra, at 2461
2462. Nonetheless, Millers past criminal history was
limitedtwo instances of truancy and one of seconddegree criminal mischief. No. CR030915, at 6
(unpublished memorandum). That Miller deserved severe
punishment for killing Cole Cannon is beyond question.
But once again, a sentencer needed to examine all these
circumstances before concluding that life without any
possibility of parole was the appropriate penalty.
[14] [15]
We therefore hold that the Eighth Amendment

forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders. Cf.
Graham, 560 U.S., at , 130 S.Ct., at 2030 (A State
is not required to guarantee eventual freedom, but must
provide some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation). By
making youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence, such a scheme
poses too great a risk of disproportionate punishment.
Because that holding is sufficient to decide these cases,
we do not consider Jacksons and Millers alternative
argument that the Eighth Amendment requires a
categorical bar on life without parole for juveniles, or at
least for those 14 and younger. But given all we have said
in Roper, Graham, and this decision about childrens
diminished culpability and heightened capacity for
change, we think appropriate occasions for sentencing
juveniles to this harshest possible penalty will be
uncommon. That is especially so because of the great
difficulty we noted in Roper and Graham of
distinguishing at this early age between the juvenile
offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption. Roper, 543 U.S., at 573,
125 S.Ct. 1183; Graham, 560 U.S., at , 130 S.Ct., at
20262027. Although we do not foreclose a sentencers
ability to make that judgment in homicide cases, we
require it to take into account how children are different,
and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.8
III
Alabama and Arkansas offer two kinds of arguments
against requiring individualized *2470 consideration
before sentencing a juvenile to life imprisonment without
possibility of parole. The States (along with the dissents)
first contend that the rule we adopt conflicts with aspects
of our Eighth Amendment caselaw. And they next assert
that the rule is unnecessary because individualized
circumstances come into play in deciding whether to try a
juvenile offender as an adult. We think the States are
wrong on both counts.

The States (along with Justice THOMAS) first claim that

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991), precludes our holding. The defendant
in Harmelin was sentenced to a mandatory life-withoutparole term for possessing more than 650 grams of
cocaine. The Court upheld that penalty, reasoning that a
sentence which is not otherwise cruel and unusual does
not becom[e] so simply because it is mandatory. Id.,
at 995, 111 S.Ct. 2680. We recognized that a different
rule, requiring individualized sentencing, applied in the
death penalty context. But we refused to extend that
command to noncapital cases because of the qualitative
difference between death and all other penalties. Ibid.;
see id., at 1006, 111 S.Ct. 2680 (KENNEDY, J.,
concurring in part and concurring in judgment).
According to Alabama, invalidating the mandatory
imposition of life-without-parole terms on juveniles
would effectively overrule Harmelin. Brief for
Respondent in No. 109646, p. 59 (hereinafter Alabama
Brief); see Arkansas Brief 39.
We think that argument myopic. Harmelin had nothing to
do with children and did not purport to apply its holding
to the sentencing of juvenile offenders. We have by now
held on multiple occasions that a sentencing rule
permissible for adults may not be so for children. Capital
punishment, our decisions hold, generally comports with
the Eighth Amendmentexcept it cannot be imposed on
children. See Roper, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1; Thompson, 487 U.S. 815, 108 S.Ct. 2687, 101
L.Ed.2d 702. So too, life without parole is permissible for
nonhomicide offensesexcept, once again, for children.
See Graham, 560 U.S., at , 130 S.Ct., at 2030. Nor
are these sentencing decisions an oddity in the law. To the
contrary, [o]ur history is replete with laws and judicial
recognition that children cannot be viewed simply as
miniature adults. J.D.B., 564 U.S., at , 131 S.Ct., at
2404 (quoting Eddings, 455 U.S., at 115116, 102 S.Ct.
869, citing examples from criminal, property, contract,
and tort law). So if (as Harmelin recognized) death is
different, children are different too. Indeed, it is the odd
legal rule that does not have some form of exception for
children. In that context, it is no surprise that the law
relating to societys harshest punishments recognizes such
a distinction. Cf. Graham, 560 U.S., at , 130 S.Ct., at
2040 (ROBERTS, C.J., concurring in judgment)
(Graham s age places him in a significantly different
category from the defendan[t] in ... Harmelin ). Our
ruling thus neither overrules nor undermines nor conflicts
with Harmelin.
[16]
Alabama and Arkansas (along with THE CHIEF

JUSTICE and Justice ALITO) next contend that because
many States impose mandatory life-without-parole

sentences on juveniles, we may not hold the practice
unconstitutional. In considering categorical bars to the
death penalty and life without parole, we ask as part of the
analysis whether objective indicia of societys
standards, as expressed in legislative enactments and state
practice, show a national consensus against a
sentence for a particular class of offenders. *2471
Graham, 560 U.S., at , 130 S.Ct., at 2022 (quoting
Roper, 543 U.S., at 563, 125 S.Ct. 1183). By our count,
29 jurisdictions (28 States and the Federal Government)
make a life-without-parole term mandatory for some
juveniles convicted of murder in adult court.9 The States
argue that this number precludes our holding.
We do not agree; indeed, we think the States argument
on this score weaker than the one we rejected in Graham.
For starters, the cases here are different from the typical
one in which we have tallied legislative enactments. Our
decision does not categorically bar a penalty for a class of
offenders or type of crimeas, for example, we did in
Roper or Graham. Instead, it mandates only that a
sentencer follow a certain processconsidering an
offenders youth and attendant characteristicsbefore
imposing a particular penalty. And in so requiring, our
decision flows straightforwardly from our precedents:
specifically, the principle of Roper, Graham, and our
individualized sentencing cases that youth matters for
purposes of meting out the laws most serious
punishments. When both of those circumstances have
obtained in the past, we have not scrutinized or relied in
the same way on legislative enactments. See, e.g., Sumner
v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56
(relying on Woodson s logic to prohibit the mandatory
death penalty for murderers already serving life without
parole); Lockett, 438 U.S., at 602608, 98 S.Ct. 2954
(plurality opinion) (applying Woodson to require that
judges and juries consider all mitigating evidence);
Eddings, 455 U.S., at 110117, 102 S.Ct. 869 (similar).
We see no difference here.
In any event, the objective indicia that the States offer
do not distinguish these cases from others holding that a
sentencing practice violates the Eighth Amendment. In
Graham, we prohibited life-without-parole terms for
juveniles committing nonhomicide offenses even though
39 jurisdictions permitted that sentence. See 560 U.S., at
, 130 S.Ct., at 2023. That is 10 more than impose life
without parole on juveniles on a mandatory basis.10 And
*2472 in Atkins, Roper, and Thompson, we similarly
banned the death penalty in circumstances in which less
than half of the States that permit [ted] capital
punishment (for whom the issue exist[ed] ) had

previously chosen to do so. Atkins, 536 U.S., at 342, 122

S.Ct. 2242 (SCALIA, J., dissenting) (emphasis deleted);
see id., at 313315, 122 S.Ct. 2242 (majority opinion);
Roper, 543 U.S., at 564565, 125 S.Ct. 1183; Thompson,
487 U.S., at 826827, 108 S.Ct. 2687 (plurality opinion).
So we are breaking no new ground in these cases.11
Graham and Thompson provide special guidance, because
they considered the same kind of statutes we do and
explained why simply counting them would present a
distorted view. Most jurisdictions authorized the death
penalty or life without parole for juveniles only through
the combination of two independent statutory provisions.
One allowed the transfer of certain juvenile offenders to
adult court, while another (often in a far-removed part of
the code) set out the penalties for any and all individuals
tried there. We reasoned that in those circumstances, it
was impossible to say whether a legislature had endorsed
a given penalty for children (or would do so if presented
with the choice). In Thompson, we found that the statutes
t[old] us that the States consider 15yearolds 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
t[old] us nothing about the *2473 judgment these States
have made regarding the appropriate punishment for such
youthful offenders. 487 U.S., at 826, n. 24, 108 S.Ct.
2687 (plurality opinion) (emphasis deleted); see also id.,
at 850, 108 S.Ct. 2687 (OConnor, J., concurring in
judgment); Roper, 543 U.S., at 596, n., 125 S.Ct. 1183
(OConnor, J., dissenting). And Graham echoed that
reasoning: Although the confluence of state laws ma[de]
life without parole possible for some juvenile
nonhomicide offenders, it did not justify a judgment
that many States actually intended to subject such
offenders to those sentences. 560 U.S., at , 130
S.Ct., at 2025.12
All that is just as true here. Almost all jurisdictions allow
some juveniles to be tried in adult court for some kinds of
homicide. See Dept. of Justice, H. Snyder & M.
Sickmund, Juvenile Offenders and Victims: 2006
National Report 110114 (hereinafter 2006 National
Report). But most States do not have separate penalty
provisions for those juvenile offenders. Of the 29
jurisdictions mandating life without parole for children,
more than half do so by virtue of generally applicable
penalty provisions, imposing the sentence without regard
to age.13 And indeed, some of those States set no
minimum age for who may be transferred to adult court in
the first instance, thus applying life-without-parole
mandates to children of any agebe it 17 or 14 or 10 or
6.14 As in Graham, we think that underscores that the
statutory eligibility of a juvenile offender for life without
parole does not indicate that the penalty has been

endorsed through deliberate, express, and full legislative
consideration. 560 U.S., at , 130 S.Ct., at 2026. That
Alabama and Arkansas can count to 29 by including these
possibly (or probably) inadvertent legislative outcomes
does not preclude our determination that mandatory life
without parole for juveniles violates the Eighth
Amendment.
*2474 B
Nor does the presence of discretion in some jurisdictions
transfer statutes aid the States here. Alabama and
Arkansas initially ignore that many States use mandatory
transfer systems: A juvenile of a certain age who has
committed a specified offense will be tried in adult court,
regardless of any individualized circumstances. Of the 29
relevant jurisdictions, about half place at least some
juvenile homicide offenders in adult court automatically,
with no apparent opportunity to seek transfer to juvenile
court.15 Moreover, several States at times lodge this
decision exclusively in the hands of prosecutors, again
with no statutory mechanism for judicial reevaluation.16
And those prosecutorial discretion laws are usually silent
regarding
standards,
protocols,
or
appropriate
considerations for decisionmaking. Dept. of Justice,
Office of Juvenile Justice and Delinquency Prevention, P.
Griffin, S. Addie, B. Adams, & K. Firestine, Trying
Juveniles as Adults: An Analysis of State Transfer Laws
and Reporting 5 (2011).
Even when States give transfer-stage discretion to judges,
it has limited utility. First, the decisionmaker typically
will have only partial information at this early, pretrial
stage about either the child or the circumstances of his
offense. Millers case provides an example. As noted
earlier, see n. 3, supra, the juvenile court denied Millers
request for his own mental-health expert at the transfer
hearing, and the appeals court affirmed on the ground that
Miller was not then entitled to the protections and
services he would receive at trial. See No. CR030915,
at 34 (unpublished memorandum). But by then, of
course, the experts testimony could not change the
sentence; whatever she said in mitigation, the mandatory
life-without-parole prison term would kick in. The key
moment for the exercise of discretion is the transferand
as Millers case shows, the judge often does not know
then what she will learn, about the offender or the offense,
over the course of the proceedings.

Second and still more important, the question at transfer

hearings may differ dramatically from the issue at a posttrial sentencing. Because many juvenile systems require
that the offender be released at a particular age or after a
certain number of years, transfer decisions often present a
choice between extremes: light punishment as a child or
standard sentencing as an adult (here, life without parole).
In many States, for example, a child convicted in juvenile
court must be released from custody by the age of 21.
See, e.g., Ala.Code 1215117(a) (Cum. Supp. 2011);
see generally 2006 National Report 103 (noting
limitations on the length of juvenile court sanctions).
Discretionary sentencing in adult court would provide
different options: There, a judge or jury could choose,
rather than a life-without-parole sentence, a lifetime
prison term with the possibility *2475 of parole or a
lengthy term of years. It is easy to imagine a judge
deciding that a minor deserves a (much) harsher sentence
than he would receive in juvenile court, while still not
thinking life-without-parole appropriate. For that reason,
the discretion available to a judge at the transfer stage
cannot substitute for discretion at post-trial sentencing in
adult courtand so cannot satisfy the Eighth
Amendment.
IV
Graham, Roper, and our individualized sentencing
decisions make clear that a judge or jury must have the
opportunity to consider mitigating circumstances before
imposing the harshest possible penalty for juveniles. By
requiring that all children convicted of homicide receive
lifetime incarceration without possibility of parole,
regardless of their age and age-related characteristics and
the nature of their crimes, the mandatory sentencing
schemes before us violate this principle of proportionality,
and so the Eighth Amendments ban on cruel and unusual
punishment. We accordingly reverse the judgments of the
Arkansas Supreme Court and Alabama Court of Criminal
Appeals and remand the cases for further proceedings not
inconsistent with this opinion.
It is so ordered.
Justice BREYER, with whom Justice SOTOMAYOR
joins, concurring.
I join the Courts opinion in full. I add that, if the State
continues to seek a sentence of life without the possibility
of parole for Kuntrell Jackson, there will have to be a

determination whether Jackson kill[ed] or intend[ed] to
kill the robbery victim. Graham v. Florida, 560 U.S.
, , 130 S.Ct. 2011, 2027, 176 L.Ed.2d 825 (2010).
In my view, without such a finding, the Eighth
Amendment as interpreted in Graham forbids sentencing
Jackson to such a sentence, regardless of whether its
application is mandatory or discretionary under state law.
In Graham we said that when compared to an adult
murderer, a juvenile offender who did not kill or intend to
kill has a twice diminished moral culpability. Ibid.
(emphasis added). For one thing, compared to adults,
juveniles have a lack of maturity and an underdeveloped
sense of responsibility; they are more vulnerable or
susceptible to negative influences and outside pressures,
including peer pressure; and their characters are not as
well formed. Id., at , 130 S.Ct., at 2026 (internal
quotation marks omitted). See also ibid. ([P]sychology
and brain science continue to show fundamental
differences between juvenile and adult minds making
their actions less likely to be evidence of irretrievably
depraved character than are the actions of adults
(quoting Roper v. Simmons, 543 U.S. 551, 570, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005))); ante, at 2464. For another
thing, Graham recognized that lack of intent normally
diminishes the moral culpability that attaches to the
crime in question, making those that do not intend to kill
categorically less deserving of the most serious forms of
punishment than are murderers. 560 U.S., at , 130
S.Ct., at 2027 (citing Kennedy v. Louisiana, 554 U.S. 407,
434435, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008);
Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107
S.Ct. 1676, 95 L.Ed.2d 127 (1987)). And we concluded
that, because of this twice diminished moral culpability,
the Eighth Amendment forbids the imposition upon
juveniles of a sentence of life without parole for
nonhomicide cases. Graham, supra, at , , 130
S.Ct., at 2027, 2034.
Given Graham s reasoning, the kinds of homicide that
can subject a juvenile offender *2476 to life without
parole must exclude instances where the juvenile himself
neither kills nor intends to kill the victim. Quite simply, if
the juvenile either kills or intends to kill the victim, he
lacks twice diminished responsibility. But where the
juvenile neither kills nor intends to kill, both features
emphasized in Graham as extenuating apply. The dissent
itself here would permit life without parole for juveniles
who commit the worst types of murder, post, at 2480
(opinion of ROBERTS, C.J.), but that phrase does not
readily fit the culpability of one who did not himself kill

or intend to kill.
I recognize that in the context of felony-murder cases, the
question of intent is a complicated one. The felonymurder doctrine traditionally attributes death caused in
the course of a felony to all participants who intended to
commit the felony, regardless of whether they killed or
intended to kill. See 2 W. LaFave, Substantive Criminal
Law 14.5(a) and (c) (2d ed. 2003). This rule has been
based on the idea of transferred intent; the defendants
intent to commit the felony satisfies the intent to kill
required for murder. See S. Kadish, S. Schulhofer, & C.
Streiker, Criminal Law and Its Processes 439 (8th ed.
2007); 2 C. Torcia, Whartons Criminal Law 147 (15th
ed. 1994).
But in my opinion, this type of transferred intent is not
sufficient to satisfy the intent to murder that could subject
a juvenile to a sentence of life without parole. As an
initial matter, this Court has made clear that this
artificially constructed kind of intent does not count as
intent for purposes of the Eighth Amendment. We do not
rely on transferred intent in determining if an adult may
receive the death penalty. Thus, the Constitution forbids
imposing capital punishment upon an aider and abettor in
a robbery, where that individual did not intend to kill and
simply was in the car by the side of the road ..., waiting
to help the robbers escape. Enmund, supra, at 788, 102
S.Ct. 3368. Cf. Tison, supra, at 157158, 107 S.Ct. 1676
(capital punishment permissible for aider and abettor
where kidnaping led to death because he was actively
involved in every aspect of the kidnaping and his
behavior showed a reckless disregard for human life).
Given Graham, this holding applies to juvenile sentences
of life without parole a fortiori. See ante, at 2466 2467.
Indeed, even juveniles who meet the Tison standard of
reckless disregard may not be eligible for life without
parole. Rather, Graham dictates a clear rule: The only
juveniles who may constitutionally be sentenced to life
without parole are those convicted of homicide offenses
who kill or intend to kill. 560 U.S., at , 130 S.Ct.,
at 2027.
Moreover, regardless of our law with respect to adults,
there is no basis for imposing a sentence of life without
parole upon a juvenile who did not himself kill or intend
to kill. At base, the theory of transferring a defendants
intent is premised on the idea that one engaged in a
dangerous felony should understand the risk that the
victim of the felony could be killed, even by a
confederate. See 2 LaFave, supra, 14.5(c). Yet the
ability to consider the full consequences of a course of
action and to adjust ones conduct accordingly is precisely
what we know juveniles lack capacity to do effectively.

Ante, at 2464 2465. Justice Frankfurter cautioned,
Legal theories and their phrasing in other cases readily
lead to fallacious reasoning if uncritically transferred to a
determination of a States duty toward children. May v.
Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 97 L.Ed. 1221
(1953) (concurring opinion). To apply the doctrine of
transferred intent here, where the juvenile did not kill, to
sentence a juvenile *2477 to life without parole would
involve such fallacious reasoning. Ibid.
This is, as far as I can tell, precisely the situation present
in Kuntrell Jacksons case. Jackson simply went along
with older boys to rob a video store. On the way, he
became aware that a confederate had a gun. He initially
stayed outside the store, and went in briefly, saying
something like We aint playin or I thought you all
was playin, before an older confederate shot and killed
the store clerk. Jackson v. State, 359 Ark. 87, 91, 194
S.W.3d 757, 760 (2004). Crucially, the jury found him
guilty of first-degree murder under a statute that permitted
them to convict if, Jackson attempted to commit or
committed an aggravated robbery, and, in the course of
that offense, he, or an accomplice, caused [the clerks]
death under circumstance manifesting extreme
indifference to the value of human life. Ibid. See
Ark.Code Ann. 510101(a)(1) (1997); ante, at 2468.
Thus, to be found guilty, Jackson did not need to kill the
clerk (it is conceded he did not), nor did he need to have
intent to kill or even extreme indifference. As long as
one of the teenage accomplices in the robbery acted with
extreme indifference to the value of human life, Jackson
could be convicted of capital murder. Ibid.
The upshot is that Jackson, who did not kill the clerk,
might not have intended to do so either. See Jackson v.
Norris, 2011 Ark. 49, at 10, S.W.3d (Danielson,
J., dissenting) ([A]ny evidence of [Jacksons] intent to
kill was severely lacking). In that case, the Eighth
Amendment simply forbids imposition of a life term
without the possibility of parole. If, on remand, however,
there is a finding that Jackson did intend to cause the
clerks death, the question remains open whether the
Eighth Amendment prohibits the imposition of life
without parole upon a juvenile in those circumstances as
well. Ante, at 2469.
Chief Justice ROBERTS, with whom Justice SCALIA,

Justice THOMAS, and Justice ALITO join, dissenting.
Determining the appropriate sentence for a teenager

convicted of murder presents grave and challenging

questions of morality and social policy. Our role,
however, is to apply the law, not to answer such
questions. The pertinent law here is the Eighth
Amendment to the Constitution, which prohibits cruel
and unusual punishments. Today, the Court invokes that
Amendment to ban a punishment that the Court does not
itself characterize as unusual, and that could not plausibly
be described as such. I therefore dissent.
The parties agree that nearly 2,500 prisoners are presently
serving life sentences without the possibility of parole for
murders they committed before the age of 18. Brief for
Petitioner in No. 109647, p. 62, n. 80 (Jackson Brief);
Brief for Respondent in No. 109646, p. 30 (Alabama
Brief). The Court accepts that over 2,000 of those
prisoners received that sentence because it was mandated
by a legislature. Ante, at 2471 2472, n. 10. And it
recognizes that the Federal Government and most States
impose such mandatory sentences. Ante, at 2470 2471.
Put simply, if a 17yearold is convicted of deliberately
murdering an innocent victim, it is not unusual for the
murderer to receive a mandatory sentence of life without
parole. That reality should preclude finding that
mandatory life imprisonment for juvenile killers violates
the Eighth Amendment.
Our precedent supports this conclusion. When
determining whether a punishment is cruel and unusual,
this Court typically begins with objective indicia of
societys standards, as expressed in legislative enactments
and state practice. Graham v. *2478 Florida, 560 U.S.
, , 130 S.Ct. 2011, 2022, 176 L.Ed.2d 825
(2010); see also, e.g., Kennedy v. Louisiana, 554 U.S.
407, 422, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008); Roper
v. Simmons, 543 U.S. 551, 564, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005). We look to these objective indicia to
ensure that we are not simply following our own
subjective values or beliefs. Gregg v. Georgia, 428 U.S.
153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint
opinion of Stewart, Powell, and Stevens, JJ.). Such
tangible evidence of societal standards enables us to
determine whether there is a consensus against a given
sentencing practice. Graham, supra, at , 130 S.Ct., at
20222023. If there is, the punishment may be regarded
as unusual. But when, as here, most States formally
require and frequently impose the punishment in question,
there is no objective basis for that conclusion.
Our Eighth Amendment cases have also said that we
should take guidance from evolving standards of
decency that mark the progress of a maturing society.
Ante, at 2463 (quoting Estelle v. Gamble, 429 U.S. 97,
102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); internal

quotation marks omitted). Mercy toward the guilty can be
a form of decency, and a maturing society may abandon
harsh punishments that it comes to view as unnecessary or
unjust. But decency is not the same as leniency. A decent
society protects the innocent from violence. A mature
society may determine that this requires removing those
guilty of the most heinous murders from its midst, both as
protection for its other members and as a concrete
expression of its standards of decency. As judges we have
no basis for deciding that progress toward greater decency
can move only in the direction of easing sanctions on the
guilty.
In this case, there is little doubt about the direction of
societys evolution: For most of the 20th century,
American sentencing practices emphasized rehabilitation
of the offender and the availability of parole. But by the
1980s, outcry against repeat offenders, broad disaffection
with the rehabilitative model, and other factors led many
legislatures to reduce or eliminate the possibility of
parole, imposing longer sentences in order to punish
criminals and prevent them from committing more
crimes. See, e.g., Alschuler, The Changing Purposes of
Criminal Punishment, 70 U. Chi. L.Rev. 1, 113 (2003);
see generally Crime and Public Policy (J. Wilson & J.
Petersilia eds. 2011). Statutes establishing life without
parole sentences in particular became more common in
the past quarter century. See Baze v. Rees, 553 U.S. 35,
78, and n. 10, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)
(Stevens, J., concurring in judgment). And the parties
agree that most States have changed their laws relatively
recently to expose teenage murderers to mandatory life
without parole. Jackson Brief 5455; Alabama Brief 45.
The Court attempts to avoid the import of the fact that so
many jurisdictions have embraced the sentencing practice
at issue by comparing this case to the Courts prior Eighth
Amendment cases. The Court notes that Graham found a
punishment
authorized
in
39
jurisdictions
unconstitutional, whereas the punishment it bans today is
mandated in 10 fewer. Ante, at 2471. But Graham went to
considerable lengths to show that although theoretically
allowed in many States, the sentence at issue in that case
was exceedingly rare in practice. 560 U.S., at , 130
S.Ct., at 2026. The Court explained that only 123
prisoners in the entire Nation were serving life without
parole for nonhomicide crimes committed as juveniles,
with more than half in a single State. It contrasted that
with statistics showing nearly 400,000 juveniles were
arrested for serious nonhomicide *2479 offenses in a
single year. Based on the sentences rarity despite the
many opportunities to impose it, Graham concluded that

there was a national consensus against life without parole

for juvenile nonhomicide crimes. Id., at , 130 S.Ct.,
at 20242026.
Here the number of mandatory life without parole
sentences for juvenile murderers, relative to the number
of juveniles arrested for murder, is over 5,000 times
higher than the corresponding number in Graham. There
is thus nothing in this case like the evidence of national
consensus in Graham.1
The Court disregards these numbers, claiming that the
prevalence of the sentence in question results from the
number of statutes requiring its imposition. Ante, at 2471
2472, n. 10. True enough. The sentence at issue is
statutorily mandated life without parole. Such a sentence
can only result from statutes requiring its imposition. In
Graham the Court relied on the low number of actual
sentences to explain why the high number of statutes
allowing such sentences was not dispositive. Here, the
Court excuses the high number of actual sentences by
citing the high number of statutes imposing it. To say that
a sentence may be considered unusual because so many
legislatures approve it stands precedent on its head.2
The Court also advances another reason for discounting
the laws enacted by Congress and most state legislatures.
Some of the jurisdictions that impose mandatory life
without parole on juvenile murderers do so as a result of
two statutes: one providing that juveniles charged with
serious crimes may be tried as adults, and another
generally mandating that those convicted of murder be
imprisoned for life. According to the Court, our cases
suggest that where the sentence results from the
interaction of two such statutes, the legislature can be
considered to have imposed the resulting sentences
inadvertent[ly]. Ante, at 2472 2474. The Court relies
on Graham and Thompson v. Oklahoma, 487 U.S. 815,
826, n. 24, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988)
(plurality opinion), for the proposition that these laws are
therefore not valid evidence of societys views on the
punishment at issue.
It is a fair question whether this Court should ever assume
a legislature is so ignorant of its own laws that it does not
understand that two of them interact *2480 with each
other, especially on an issue of such importance as the
one before us. But in Graham and Thompson it was at
least plausible as a practical matter. In Graham, the
extreme rarity with which the sentence in question was
imposed could suggest that legislatures did not really
intend the inevitable result of the laws they passed. See
560 U.S., at , 130 S.Ct., at 20252026. In Thompson,
the sentencing practice was even rareronly 20

defendants had received it in the last century. 487 U.S., at
832, 108 S.Ct. 2687 (plurality opinion). Perhaps under
those facts it could be argued that the legislature was not
fully aware that a teenager could receive the particular
sentence in question. But here the widespread and recent
imposition of the sentence makes it implausible to
characterize this sentencing practice as a collateral
consequence of legislative ignorance.3
Nor do we display our usual respect for elected officials
by asserting that legislators have accidentally required
2,000 teenagers to spend the rest of their lives in jail. This
is particularly true given that our well-publicized decision
in Graham alerted legislatures to the possibility that
teenagers were subject to life with parole only because of
legislative inadvertence. I am aware of no effort in the
wake of Graham to correct any supposed legislative
oversight. Indeed, in amending its laws in response to
Graham one legislature made especially clear that it does
intend juveniles who commit first-degree murder to
receive mandatory life without parole. See Iowa Code
Ann. 902.1 (West Cum. Supp. 2012).
In the end, the Court does not actually conclude that
mandatory life sentences for juvenile murderers are
unusual. It instead claims that precedent leads to
todays decision, primarily relying on Graham and Roper.
Ante, at 2464. Petitioners argue that the reasoning of those
cases compels finding in their favor. Jackson Brief 34.
The Court is apparently unwilling to go so far, asserting
only that precedent points in that direction. But todays
decision invalidates the laws of dozens of legislatures and
Congress. This Court is not easily led to such a result.
See, e.g., United States v. Harris, 106 U.S. 629, 635, 1
S.Ct. 601, 27 L.Ed. 290 (1883) (courts must presume an
Act of Congress is constitutional unless the lack of
constitutional authority ... is clearly demonstrated).
Because the Court does not rely on the Eighth
Amendments text or objective evidence of societys
standards, its analysis of precedent alone must bear the
heavy burden [that] rests on those who would attack the
judgment of the representatives of the people. Gregg,
428 U.S., at 175, 96 S.Ct. 2909. If the Court is unwilling
to say that precedent compels todays decision, perhaps it
should reconsider that decision.
In any event, the Courts holding does not follow from
Roper and Graham. Those cases undoubtedly stand for
the proposition that teenagers are less mature, less
responsible, and less fixed in their ways than adultsnot
that a Supreme Court case was needed to establish that.
What they do not stand for, and do not even suggest, is

that legislatorswho also know that teenagers are

different from adultsmay not require life without parole
for juveniles who commit the worst types of murder.
That Graham does not imply todays result could not be
clearer. In barring life *2481 without parole for juvenile
nonhomicide offenders, Graham stated that [t]here is a
line between homicide and other serious violent offenses
against the individual. 560 U.S., at , 130 S.Ct., at
2027 (quoting Kennedy, 554 U.S., at 438, 128 S.Ct.
2641). The whole point of drawing a line between one
issue and another is to say that they are different and
should be treated differently. In other words, the two are
in different categories. Which Graham also said:
defendants who do not kill, intend to kill, or foresee that
life will be taken are categorically less deserving of the
most serious forms of punishment than are murderers.
560 U.S., at , 130 S.Ct., at 2027 (emphasis added).
Of course, to be especially clear that what is said about
one issue does not apply to another, one could say that the
two issues cannot be compared. Graham said that too:
Serious nonhomicide crimes ... cannot be compared to
murder. Ibid. (internal quotation marks omitted). A case
that expressly puts an issue in a different category from its
own subject, draws a line between the two, and states that
the two should not be compared, cannot fairly be said to
control that issue.
Roper provides even less support for the Courts holding.
In that case, the Court held that the death penalty could
not be imposed for offenses committed by juveniles, no
matter how serious their crimes. In doing so, Roper also
set itself in a different category than this case, by
expressly invoking special Eighth Amendment analysis
for death penalty cases. 543 U.S., at 568569, 125 S.Ct.
1183. But more importantly, Roper reasoned that the
death penalty was not needed to deter juvenile murderers
in part because life imprisonment without the possibility
of parole was available. Id., at 572, 125 S.Ct. 1183. In a
classic bait and switch, the Court now tells state
legislatures thatRoper s promise notwithstanding
they do not have power to guarantee that once someone
commits a heinous murder, he will never do so again. It
would be enough if todays decision proved Justice
SCALIAs prescience in writing that Roper s
reassurance ... gives little comfort. Id., at 623, 125 S.Ct.
1183 (dissenting opinion). To claim that Roper actually
leads to revoking its own reassurance surely goes too
far.
Todays decision does not offer Roper and Graham s
false promises of restraint. Indeed, the Courts opinion
suggests that it is merely a way station on the path to
further judicial displacement of the legislative role in

prescribing appropriate punishment for crime. The
Courts analysis focuses on the mandatory nature of the
sentences in this case. See ante, at 2466 2469. But
thenalthough doing so is entirely unnecessary to the
rule it announcesthe Court states that even when a life
without parole sentence is not mandatory, we think
appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon. Ante, at
2469. Todays holding may be limited to mandatory
sentences, but the Court has already announced that
discretionary life without parole for juveniles should be
uncommonor, to use a common synonym, unusual.
Indeed, the Courts gratuitous prediction appears to be
nothing other than an invitation to overturn life without
parole sentences imposed by juries and trial judges. If that
invitation is widely accepted and such sentences for
juvenile offenders do in fact become uncommon, the
Court will have bootstrapped its way to declaring that the
Eighth Amendment absolutely prohibits them.
This process has no discernible end pointor at least
none consistent with our Nations legal traditions. Roper
and Graham *2482 attempted to limit their reasoning to
the circumstances they addressedRoper to the death
penalty, and Graham to nonhomicide crimes. Having cast
aside those limits, the Court cannot now offer a credible
substitute, and does not even try. After all, the Court tells
us, none of what [Graham ] said about children ... is
crime-specific. Ante, at 2465. The principle behind
todays decision seems to be only that because juveniles
are different from adults, they must be sentenced
differently. See ante, at 2467 2469. There is no clear
reason that principle would not bar all mandatory
sentences for juveniles, or any juvenile sentence as harsh
as what a similarly situated adult would receive. Unless
confined, the only stopping point for the Courts analysis
would be never permitting juvenile offenders to be tried
as adults. Learning that an Amendment that bars only
unusual punishments requires the abolition of this
uniformly established practice would be startling indeed.
***
It is a great tragedy when a juvenile commits murder
most of all for the innocent victims. But also for the
murderer, whose life has gone so wrong so early. And for
society as well, which has lost one or more of its members
to deliberate violence, and must harshly punish another.
In recent years, our society has moved toward requiring
that the murderer, his age notwithstanding, be imprisoned
for the remainder of his life. Members of this Court may

disagree with that choice. Perhaps science and policy

suggest society should show greater mercy to young
killers, giving them a greater chance to reform themselves
at the risk that they will kill again. See ante, at 2464
2466. But that is not our decision to make. Neither the
text of the Constitution nor our precedent prohibits
legislatures from requiring that juvenile murderers be
sentenced to life without parole. I respectfully dissent.
Justice THOMAS, with whom Justice SCALIA joins,

dissenting.
Today, the Court holds that mandatory life without
parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendments prohibition on
cruel and unusual punishments. Ante, at 2460. To
reach that result, the Court relies on two lines of
precedent. The first involves the categorical prohibition of
certain punishments for specified classes of offenders.
The second requires individualized sentencing in the
capital punishment context. Neither line is consistent with
the original understanding of the Cruel and Unusual
Punishments Clause. The Court compounds its errors by
combining these lines of precedent and extending them to
reach a result that is even less legitimate than the
foundation on which it is built. Because the Court upsets
the legislatively enacted sentencing regimes of 29
jurisdictions without constitutional warrant, I respectfully
dissent.1
I
The Court first relies on its cases adopt[ing] categorical
bans on sentencing practices based on mismatches
between the culpability of a class of offenders and the
severity of a penalty. Ante, at 2463. Of these categorical
proportionality cases, the Court places particular
emphasis on Roper v. Simmons, 543 U.S. 551, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida, 560
U.S. , 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In
Roper, the Court held that the Constitution prohibits the
execution of an offender who was under 18 at the time of
his offense. *2483 543 U.S., at 578, 125 S.Ct. 1183. The
Roper Court looked to, among other things, its own sense
of parental intuition and scientific and sociological
studies to conclude that offenders under the age of 18
cannot with reliability be classified among the worst
offenders. Id., at 569, 125 S.Ct. 1183. In Graham, the
Court relied on similar considerations to conclude that the

Constitution prohibits a life-without-parole sentence for a
nonhomicide offender who was under the age of 18 at the
time of his offense. 560 U.S., at , 130 S.Ct., at 2030.
The Court now concludes that mandatory life-withoutparole sentences for duly convicted juvenile murderers
contraven[e] Graham s (and also Roper s) foundational
principle: that imposition of a States most severe
penalties on juvenile offenders cannot proceed as though
they were not children. Ante, at 2466. But neither Roper
nor Graham held that specific procedural rules are
required for sentencing juvenile homicide offenders. And,
the logic of those cases should not be extended to create
such a requirement.
The Eighth Amendment, made applicable to the States by
the Fourteenth Amendment, provides that: Excessive
bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted. As I have
previously explained, the Cruel and Unusual
Punishments Clause was originally understood as
prohibiting torturous methods of punishment
specifically methods akin to those that had been
considered cruel and unusual at the time the Bill of Rights
was adopted. Graham, supra, at , 130 S.Ct., at 2044
(dissenting opinion) (internal quotation marks and
citations omitted).2 The clause does not contain a
proportionality principle. Ewing v. California, 538 U.S.
11, 32, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003)
(THOMAS, J., concurring in judgment); see generally
Harmelin v. Michigan, 501 U.S. 957, 975985, 111 S.Ct.
2680, 115 L.Ed.2d 836 (1991) (opinion of SCALIA, J.).
In short, it does not authorize courts to invalidate any
punishment they deem disproportionate to the severity of
the crime or to a particular class of offenders. Instead, the
clause leaves the unavoidably moral question of who
deserves a particular nonprohibited method of
punishment to the judgment of the legislatures that
authorize the penalty. Graham, supra, at , 130
S.Ct., at 2045 (THOMAS, J., dissenting).
The legislatures of Arkansas and Alabama, like those of
27 other jurisdictions, ante, at 2470 2471, have
determined that all offenders convicted of specified
homicide offenses, whether juveniles or not, deserve a
sentence of life in prison without the possibility of parole.
Nothing in our Constitution authorizes this Court to
supplant that choice.

II
To invalidate mandatory life-without-parole sentences for
juveniles, the Court also *2484 relies on its cases
prohibit[ing] mandatory imposition of capital
punishment. Ante, at 2463. The Court reasons that,
because Graham compared juvenile life-without-parole
sentences to the death penalty, the distinctive set of legal
rules that this Court has imposed in the capital
punishment context, including the requirement of
individualized sentencing, is relevant here. Ante, at
2466 2467. But even accepting an analogy between
capital and juvenile life-without-parole sentences, this
Courts cases prohibiting mandatory capital sentencing
schemes have no basis in the original understanding of the
Eighth Amendment, and, thus, cannot justify a prohibition
of sentencing schemes that mandate life-without-parole
sentences for juveniles.
A
In a line of cases following Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam),
this Court prohibited the mandatory imposition of the
death penalty. See Woodson v. North Carolina, 428 U.S.
280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality
opinion); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct.
3001, 49 L.Ed.2d 974 (1976) (same); Sumner v. Shuman,
483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987).
Furman first announced the principle that States may not
permit sentencers to exercise unguided discretion in
imposing the death penalty. See generally 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346. In response to Furman,
many States passed new laws that made the death penalty
mandatory following conviction of specified crimes,
thereby eliminating the offending discretion. See Gregg v.
Georgia, 428 U.S. 153, 180181, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.). The Court invalidated those statutes in
Woodson, Roberts, and Sumner. The Court reasoned that
mandatory capital sentencing schemes were problematic,
because they failed to allow the particularized
consideration of relevant facets of the character and
record of the individual offender or the circumstances of
the particular offense. Woodson, supra, at 303304, 96
S.Ct. 2978 (plurality opinion).3
In my view, Woodson and its progeny were wrongly
decided. As discussed above, the Cruel and Unusual
Punishments Clause, as originally understood, prohibits
torturous methods of punishment. See Graham, 560

U.S., at , 130 S.Ct., at 2044 (THOMAS, J.,
dissenting) (internal quotation marks omitted). It is not
concerned with whether a particular lawful method of
punishmentwhether capital or noncapitalis imposed
pursuant to a mandatory or discretionary sentencing
regime. See Gardner v. Florida, 430 U.S. 349, 371, 97
S.Ct. 1197, 51 L.Ed.2d 393 (1977) (Rehnquist, J.,
dissenting) (The prohibition of the Eighth Amendment
relates to the character of the punishment, and not to the
process by which it is *2485 imposed). In fact, [i]n the
early days of the Republic, each crime generally had a
defined punishment prescribed with specificity by the
legislature. United States v. Grayson, 438 U.S. 41, 45, 98
S.Ct. 2610, 57 L.Ed.2d 582 (1978). Capital sentences, to
which the Court analogizes, were treated no differently.
[M]andatory death sentences abounded in our first Penal
Code and were common in the several Statesboth at
the time of the founding and throughout the 19th
century. Harmelin, 501 U.S., at 994995, 111 S.Ct.
2680; see also Woodson, supra, at 289, 96 S.Ct. 2978
(plurality opinion) (At the time the Eighth Amendment
was adopted in 1791, the States uniformly followed the
common-law practice of making death the exclusive and
mandatory sentence for certain specified offenses).
Accordingly, the idea that the mandatory imposition of an
otherwise-constitutional sentence renders that sentence
cruel and unusual finds no support in the text and history
of the Eighth Amendment. Harmelin, supra, at 994, 111
S.Ct. 2680.
Moreover, mandatory death penalty schemes were a
perfectly reasonable legislative response to the concerns
expressed in Furman regarding unguided sentencing
discretion, in that they eliminat[ed] explicit jury
discretion and treat[ed] all defendants equally. Graham
v. Collins, 506 U.S. 461, 487, 113 S.Ct. 892, 122 L.Ed.2d
260 (1993) (THOMAS, J., concurring). And, as Justice
White explained more than 30 years ago, a State is not
constitutionally forbidden to provide that the commission
of certain crimes conclusively establishes that a criminals
character is such that he deserves death. Roberts, supra,
at 358, 96 S.Ct. 3001 (dissenting opinion). Thus, there is
no basis for concluding that a mandatory capital
sentencing scheme is unconstitutional. Because the
Courts cases requiring individualized sentencing in the
capital context are wrongly decided, they cannot serve as
a valid foundation for the novel rule regarding mandatory
life-without-parole sentences for juveniles that the Court
announces today.

B
In any event, this Court has already declined to extend its
individualized-sentencing rule beyond the death penalty
context. In Harmelin, the defendant was convicted of
possessing a large quantity of drugs. 501 U.S., at 961, 111
S.Ct. 2680 (opinion of SCALIA, J.). In accordance with
Michigan law, he was sentenced to a mandatory term of
life in prison without the possibility of parole. Ibid. Citing
the same line of death penalty precedents on which the
Court relies today, the defendant argued that his sentence,
due to its mandatory nature, violated the Cruel and
Unusual Punishments Clause. Id., at 994995, 111 S.Ct.
2680 (opinion of the Court).
The Court rejected that argument, explaining that [t]here
can be no serious contention ... that a sentence which is
not otherwise cruel and unusual becomes so simply
because it is mandatory. Id., at 995, 111 S.Ct. 2680. In
so doing, the Court refused to analogize to its death
penalty cases. The Court noted that those cases had
repeatedly suggested that there is no comparable
[individualized-sentencing] requirement outside the
capital context, because of the qualitative difference
between death and all other penalties. Ibid. The Court
observed that, even where the difference between a
sentence of life without parole and other sentences of
imprisonment is the greatest, such a sentence cannot
be compared with death. Id., at 996, 111 S.Ct. 2680.
Therefore, the Court concluded that the line of cases
requiring individualized sentencing had been drawn at
capital cases, and that there was no basis for extending it
further. Ibid.
*2486 Harmelin s reasoning logically extends to these
cases. Obviously, the younger the defendant, the
great[er] the difference between a sentence of life
without parole and other terms of imprisonment. Ibid. But
under Harmelin s rationale, the defendants age is
immaterial to the Eighth Amendment analysis. Thus, the
result in todays cases should be the same as that in
Harmelin. Petitioners, like the defendant in Harmelin,
were not sentenced to death. Accordingly, this Courts
cases creating and clarifying the individualized capital
sentencing doctrine do not apply. Id., at 995, 111 S.Ct.
Nothing about our Constitution, or about the qualitative
difference between any term of imprisonment and death,
has changed since Harmelin was decided 21 years ago.
What has changed (or, better yet, evolved) is this
Courts ever-expanding line of categorical proportionality
cases. The Court now uses Roper and Graham to jettison
Harmelin s clear distinction between capital and

noncapital cases and to apply the former to noncapital
juvenile offenders.4 The Courts decision to do so is even
less supportable than the precedents used to reach it.
III
As THE CHIEF JUSTICE notes, ante, at 2481 2482
(dissenting opinion), the Court lays the groundwork for
future incursions on the States authority to sentence
criminals. In its categorical proportionality cases, the
Court has considered objective indicia of societys
standards, as expressed in legislative enactments and state
practice to determine whether there is a national
consensus against the sentencing practice at issue.
Graham, 560 U.S., at , 130 S.Ct.at 2022 (quoting
Roper, 543 U.S., at 563, 125 S.Ct. 1183). In Graham, for
example, the Court looked to [a]ctual sentencing
practices to conclude that there was a national consensus
against life-without-parole sentences for juvenile
nonhomicide offenders. 560 U.S., at , 130 S.Ct., at
20232025; see also Roper, supra, at 564565, 125 S.Ct.
1183; Atkins v. Virginia, 536 U.S. 304, 316, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002).
Today, the Court makes clear that, even though its
decision leaves intact the discretionary imposition of lifewithout-parole sentences for juvenile homicide offenders,
it think[s] appropriate occasions for sentencing juveniles
to [life without parole] will be uncommon. Ante, at 2469.
That statement may well cause trial judges to shy away
from imposing life without parole sentences and
embolden appellate judges to set them aside when they
are imposed. And, when a future petitioner seeks a
categorical ban on sentences of life without parole for
juvenile homicide offenders, this Court will most
assuredly look to the actual sentencing practices
triggered by this case. The Court has, thus, gone from
merely divining the societal consensus of today to
shaping the societal consensus of tomorrow.
***
Todays decision invalidates a constitutionally
permissible sentencing system based on nothing more
than the Courts belief that its own sense of morality ...
*2487 pre-empts that of the people and their
representatives. Graham, supra, at , 130 S.Ct., at
2058 (THOMAS, J., dissenting). Because nothing in the
Constitution grants the Court the authority it exercises

today, I respectfully dissent.
Justice ALITO, with whom Justice SCALIA joins,

dissenting.
The Court now holds that Congress and the legislatures of
the 50 States are prohibited by the Constitution from
identifying any category of murderers under the age of 18
who must be sentenced to life imprisonment without
parole. Even a 171/2yearold who sets off a bomb in a
crowded mall or guns down a dozen students and teachers
is a child and must be given a chance to persuade a
judge to permit his release into society. Nothing in the
Constitution supports this arrogation of legislative
authority.
The Court long ago abandoned the original meaning of
the Eighth Amendment, holding instead that the
prohibition of cruel and unusual punishment embodies
the evolving standards of decency that mark the progress
of a maturing society. Trop v. Dulles, 356 U.S. 86, 101,
78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion);
see also Graham v. Florida, 560 U.S. , , 130
S.Ct. 2011, 20202021, 176 L.Ed.2d 825 (2010);
Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641,
171 L.Ed.2d 525 (2008); Roper v. Simmons, 543 U.S.
551, 560561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005);
Atkins v. Virginia, 536 U.S. 304, 311312, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002); Hudson v. McMillian, 503
U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Ford v.
Wainwright, 477 U.S. 399, 406, 106 S.Ct. 2595, 91
L.Ed.2d 335 (1986); Rhodes v. Chapman, 452 U.S. 337,
346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Estelle v.
Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976). Both the provenance and philosophical basis for
this standard were problematic from the start. (Is it true
that our society is inexorably evolving in the direction of
greater and greater decency? Who says so, and how did
this particular philosophy of history find its way into our
fundamental law? And in any event, arent elected
representatives more likely than unaccountable judges to
reflect changing societal standards?) But at least at the
start, the Court insisted that these evolving standards
represented something other than the personal views of
five Justices. See Rummel v. Estelle, 445 U.S. 263, 275,
100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (explaining that
the Courts Eighth Amendment judgments should neither
be nor appear to be merely the subjective views of
individual Justices). Instead, the Court looked for
objective indicia of our societys moral standards and the
trajectory of our moral evolution. See id., at 274275,
100 S.Ct. 1133 (emphasizing that judgment should be

informed by objective factors to the maximum possible
extent (quoting Coker v. Georgia, 433 U.S. 584, 592,
97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality
opinion))).
In this search for objective indicia, the Court toyed with
the use of public opinion polls, see Atkins, supra, at 316,
n. 21, 122 S.Ct. 2242, and occasionally relied on foreign
law, see Roper v. Simmons, supra, at 575, 125 S.Ct. 1183;
Enmund v. Florida, 458 U.S. 782, 796, n. 22, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982); Thompson v. Oklahoma,
487 U.S. 815, 830831, 108 S.Ct. 2687, 101 L.Ed.2d 702
(1988); Coker, 433 U.S., at 596, n. 10, 97 S.Ct. 2861
In the main, however, the staple of this inquiry was the
tallying of the positions taken by state legislatures. Thus,
in Coker, which held that the Eighth Amendment
prohibits the imposition of the death penalty *2488 for the
rape of an adult woman, the Court noted that only one
State permitted that practice. Id., at 595596, 97 S.Ct.
2861. In Enmund, where the Court held that the Eighth
Amendment forbids capital punishment for ordinary
felony murder, both federal law and the law of 28 of the
36 States that authorized the death penalty at the time
rejected that punishment. 458 U.S., at 789, 102 S.Ct.
3368.
While the tally in these early cases may be characterized
as evidence of a national consensus, the evidence became
weaker and weaker in later cases. In Atkins, which held
that low-IQ defendants may not be sentenced to death, the
Court found an anti-death-penalty consensus even though
more than half of the States that allowed capital
punishment permitted the practice. See 536 U.S., at 342,
122 S.Ct. 2242 (SCALIA, J., dissenting) (observing that
less than half of the 38 States that permit capital
punishment have enacted legislation barring execution of
the mentally retarded). The Court attempted to get around
this problem by noting that there was a pronounced trend
against this punishment. See id., at 313315, 122 S.Ct.
2242 (listing 18 States that had amended their laws since
1986 to prohibit the execution of mentally retarded
persons).
The importance of trend evidence, however, was not long
lived. In Roper, which outlawed capital punishment for
defendants between the ages of 16 and 18, the lineup of
the States was the same as in Atkins, but the trend in favor
of abolitionfive States during the past 15 yearswas
less impressive. Roper, 543 U.S., at 564565, 125 S.Ct.
1183. Nevertheless, the Court held that the absence of a

strong trend in support of abolition did not matter. See id.,

at 566, 125 S.Ct. 1183 (Any difference between this case
and Atkins with respect to the pace of abolition is thus
counterbalanced by the consistent direction of the
change).
In Kennedy v. Louisiana, the Court went further. Holding
that the Eighth Amendment prohibits capital punishment
for the brutal rape of a 12yearold girl, the Court
disregarded a nascent legislative trend in favor of
permitting capital punishment for this narrowly defined
and heinous crime. See 554 U.S., at 433, 128 S.Ct. 2641
(explaining that, although the total number of States to
have made child rape a capital offense ... is six, [t]his is
not an indication of a trend or change in direction
comparable to the one supported by data in Roper ). The
Court felt no need to see whether this trend developed
furtherperhaps because true moral evolution can lead in
only one direction. And despite the argument that the rape
of a young child may involve greater depravity than some
murders, the Court proclaimed that homicide is
categorically different from all (or maybe almost all)
other offenses. See id., at 438, 128 S.Ct. 2641 (stating that
nonhomicide crimes, including child rape, may be
devastating in their harm ... but in terms of moral
depravity and of the injury to the person and to the public,
they cannot be compared to murder in their severity and
irrevocability (internal quotation marks and citation
omitted)). As the Court had previously put it, death is
different. Ford, supra, at 411, 106 S.Ct. 2595 (plurality
opinion).
Two years after Kennedy, in Graham v. Florida, any
pretense of heeding a legislative consensus was discarded.
In Graham, federal law and the law of 37 States and the
District of Columbia permitted a minor to be sentenced to
life imprisonment without parole for nonhomicide crimes,
but despite this unmistakable evidence of a national
consensus, the Court held that the practice violates the
Eighth Amendment. See *2489 560 U.S., at , 130
S.Ct., at 20432044 (THOMAS, J., dissenting). The
Court, however, drew a distinction between minors who
murder and minors who commit other heinous offenses,
so at least in that sense the principle that death is different
lived on.
Today, that principle is entirely put to rest, for here we are
concerned with the imposition of a term of imprisonment
on offenders who kill. The two (carefully selected) cases
before us concern very young defendants, and despite the
brutality and evident depravity exhibited by at least one of
the petitioners, it is hard not to feel sympathy for a 14
yearold sentenced to life without the possibility of
release. But no one should be confused by the particulars

of the two cases before us. The category of murderers that
the Court delicately calls children (murderers under the
age of 18) consists overwhelmingly of young men who
are fast approaching the legal age of adulthood. Evan
Miller and Kuntrell Jackson are anomalies; much more
typical are murderers like Donald Roper, who committed
a brutal thrill-killing just nine months shy of his 18th
birthday. Roper, 543 U.S., at 556, 125 S.Ct. 1183.
Seventeen-year-olds commit a significant number of
murders every year,1 and some of these crimes are
incredibly brutal. Many of these murderers are at least as
mature as the average 18yearold. See Thompson, 487
U.S., at 854, 108 S.Ct. 2687 (OConnor, J., concurring in
judgment) (noting that maturity may vary widely among
different individuals of the same age). Congress and the
legislatures of 43 States have concluded that at least some
of these murderers should be sentenced to prison without
parole, and 28 States and the Federal Government have
decided that for some of these offenders life without
parole should be mandatory. See Ante, at 2471 2472,
and nn. 910. The majority of this Court now overrules
these legislative judgments.2
It is true that, at least for now, the Court apparently
permits a trial judge to make an individualized decision
that a particular minor convicted of murder should be
sentenced to life without parole, but do not expect this
possibility to last very long. The majority goes out of its
way to express the view that the imposition of a sentence
of life without parole on a child (i.e., a murderer under
the age of 18) should be uncommon. Having held in
Graham that a trial judge with discretionary sentencing
authority may not impose a sentence of life without parole
on a minor *2490 who has committed a nonhomicide
offense, the Justices in the majority may soon extend that
holding to minors who commit murder. We will see.
What todays decision shows is that our Eighth
Amendment cases are no longer tied to any objective
indicia of societys standards. Our Eighth Amendment
case law is now entirely inward looking. After entirely
disregarding objective indicia of our societys standards
in Graham, the Court now extrapolates from Graham.
Future cases may extrapolate from todays holding, and
this process may continue until the majority brings
sentencing practices into line with whatever the majority
views as truly evolved standards of decency.
The Eighth Amendment imposes certain limits on the
sentences that may be imposed in criminal cases, but for
the most part it leaves questions of sentencing policy to be

determined by Congress and the state legislaturesand

with good reason. Determining the length of
imprisonment that is appropriate for a particular offense
and a particular offender inevitably involves a balancing
of interests. If imprisonment does nothing else, it removes
the criminal from the general population and prevents him
from committing additional crimes in the outside world.
When a legislature prescribes that a category of killers
must be sentenced to life imprisonment, the legislature,
which presumably reflects the views of the electorate, is
taking the position that the risk that these offenders will
kill again outweighs any countervailing consideration,
including reduced culpability due to immaturity or the
possibility of rehabilitation. When the majority of this
Court countermands that democratic decision, what the
majority is saying is that members of society must be
exposed to the risk that these convicted murderers, if

released from custody, will murder again.
Unless our cases change course, we will continue to
march toward some vision of evolutionary culmination
that the Court has not yet disclosed. The Constitution does
not authorize us to take the country on this journey.
Parallel Citations
183 L.Ed.2d 407, 12 Cal. Daily Op. Serv. 7078, 2012
Daily Journal D.A.R. 8634, 23 Fla. L. Weekly Fed. S 455
Footnotes
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Jackson was ineligible for the death penalty under Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988)
(plurality opinion), which held that capital punishment of offenders under the age of 16 violates the Eighth Amendment.
For the first time in this Court, Arkansas contends that Jacksons sentence was not mandatory. On its view, state law then in effect
allowed the trial judge to suspend the life-without-parole sentence and commit Jackson to the Department of Human Services for a
training-school program, at the end of which he could be placed on probation. Brief for Respondent in No. 109647, pp. 3637
(hereinafter Arkansas Brief) (citing Ark.Code Ann. 1228403(b)(2) (1999)). But Arkansas never raised that objection in the
state courts, and they treated Jacksons sentence as mandatory. We abide by that interpretation of state law. See, e.g., Mullaney v.
Wilbur, 421 U.S. 684, 690691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
The Court of Criminal Appeals also affirmed the juvenile courts denial of Millers request for funds to hire his own mental expert
for the transfer hearing. The court pointed out that under governing Alabama Supreme Court precedent, the procedural
requirements of a trial do not ordinarily apply to those hearings. E.J.M. v. State, 928 So.2d 1077 (Ala.Crim.App.2004) (Cobb, J.,
concurring in result) (internal quotation marks omitted). In a separate opinion, Judge Cobb agreed on the reigning precedent, but
urged the State Supreme Court to revisit the question in light of transfer hearings importance. See id., at 1081 ([A]lthough later
mental evaluation as an adult affords some semblance of procedural due process, it is, in effect, too little, too late).
The three dissenting opinions here each take issue with some or all of those precedents. See post, at 2479 2480 (opinion of
ROBERTS, C.J.); post, at 2482 2485 (opinion of THOMAS, J.); post, at 2487 2489 (opinion of ALITO, J.). That is not
surprising: their authors (and joiner) each dissented from some or all of those precedents. See, e.g., Kennedy, 554 U.S., at 447, 128
S.Ct. 2641 (ALITO, J., joined by ROBERTS, C.J., and SCALIA and THOMAS, JJ., dissenting); Roper, 543 U.S., at 607, 125 S.Ct.
1183 (SCALIA, J., joined by THOMAS, J., dissenting); Atkins, 536 U.S., at 337, 122 S.Ct. 2242 (SCALIA, J., joined by
THOMAS, J., dissenting); Thompson, 487 U.S., at 859, 108 S.Ct. 2687 (SCALIA, J., dissenting); Graham v. Collins, 506 U.S. 461,
487, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (THOMAS, J., concurring) (contending that Woodson was wrongly decided). In
particular, each disagreed with the majoritys reasoning in Graham, which is the foundation stone of our analysis. See Graham,
560 U.S., at , 130 S.Ct., at 2036 (ROBERTS, C.J., concurring in judgment); id., at , 130 S.Ct., at 20432056 (THOMAS,
J., joined by SCALIA and ALITO, JJ., dissenting); id., at , 130 S.Ct., at 2058 (ALITO, J., dissenting). While the dissents seek
to relitigate old Eighth Amendment battles, repeating many arguments this Court has previously (and often) rejected, we apply the
logic of Roper, Graham, and our individualized sentencing decisions to these two cases.
The evidence presented to us in these cases indicates that the science and social science supporting Roper s and Graham s
conclusions have become even stronger. See, e.g., Brief for American Psychological Association et al. as Amici Curiae 3 ([A]n
ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the Courts
conclusions); id., at 4 (It is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to
higher-order executive functions such as impulse control, planning ahead, and risk avoidance); Brief for J. Lawrence Aber et al.
as Amici Curiae 1228 (discussing post-Graham studies); id., at 2627 (Numerous studies post-Graham indicate that exposure to

deviant peers leads to increased deviant behavior and is a consistent predictor of adolescent delinquency (footnote omitted)).
6
In discussing Graham, the dissents essentially ignore all of this reasoning. See post, at 2478 2480 (opinion of ROBERTS, C.J.);
post, at 2488 2489 (opinion of ALITO, J.). Indeed, THE CHIEF JUSTICE ignores the points made in his own concurring
opinion. The only part of Graham that the dissents see fit to note is the distinction it drew between homicide and nonhomicide
offenses. See post, at 2480 2481 (opinion of ROBERTS, C.J.); post, at 2488 2489 (opinion of ALITO, J.). But contrary to the
dissents charge, our decision today retains that distinction: Graham established one rule (a flat ban) for nonhomicide offenses,
while we set out a different one (individualized sentencing) for homicide offenses.
Although adults are subject as well to the death penalty in many jurisdictions, very few offenders actually receive that sentence.
See, e.g., Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts
2006Statistical Tables, p. 28 (Table 4.4) (rev. Nov. 22, 2010). So in practice, the sentencing schemes at issue here result in
juvenile homicide offenders receiving the same nominal punishment as almost all adults, even though the two classes differ
significantly in moral culpability and capacity for change.
Given our holding, and the dissents competing position, we see a certain irony in their repeated references to 17yearolds who
have committed the most heinous offenses, and their comparison of those defendants to the 14yearolds here. See post, at 2477
(opinion of ROBERTS, C.J.) (noting the 17year old [who] is convicted of deliberately murdering an innocent victim); post, at
2478 (the most heinous murders); post, at 2480 (the worst types of murder); post, at 2489 (opinion of ALITO, J.) (warning the
reader not to be confused by the particulars of these two cases); post, at 2489 (discussing the 171/2yearold who sets off a
bomb in a crowded mall). Our holding requires factfinders to attend to exactly such circumstancesto take into account the
differences among defendants and crimes. By contrast, the sentencing schemes that the dissents find permissible altogether
preclude considering these factors.
The States note that 26 States and the Federal Government make life without parole the mandatory (or mandatory minimum)
punishment for some form of murder, and would apply the relevant provision to 14yearolds (with many applying it to even
younger defendants). See Alabama Brief 1718. In addition, life without parole is mandatory for older juveniles in Louisiana (age
15 and up) and Texas (age 17). See La. Child. Code Ann., Arts. 857(A), (B) (West Supp. 2012); La.Rev.Stat. Ann. 14:30(C),
14:30.1(B) (West Supp.2012); Tex. Family Code Ann. 51.02(2)(A), 54.02(a)(2)(A) (West Supp.2011); Tex. Penal Code Ann.
12.31(a) (West 2011). In many of these jurisdictions, life without parole is the mandatory punishment only for aggravated forms of
murder. That distinction makes no difference to our analysis. We have consistently held that limiting a mandatory death penalty
law to particular kinds of murder cannot cure the laws constitutional vice of disregarding the circumstances of the particular
offense and the character and propensities of the offender. Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d
974 (1976) (plurality opinion); see Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987). The same analysis
applies here, for the same reasons.
10
In assessing indicia of societal standards, Graham discussed actual sentencing practices in addition to legislative enactments,
noting how infrequently sentencers imposed the statutorily available penalty. 560 U.S., at , 130 S.Ct., at 2023. Here, we
consider the constitutionality of mandatory sentencing schemeswhich by definition remove a judges or jurys discretionso no
comparable gap between legislation and practice can exist. Rather than showing whether sentencers consider life without parole for
juvenile homicide offenders appropriate, the number of juveniles serving this sentence, see post, at 2477, 2478 2479 (ROBERTS,
C.J., dissenting), merely reflects the number who have committed homicide in mandatory-sentencing jurisdictions. For the same
reason, THE CHIEF JUSTICEs comparison of ratios in this case and Graham carries little weight. He contrasts the number of
mandatory life-without-parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, with the
corresponding number of sentences in Graham (i.e., the number of life-without-parole sentences for juveniles who committed
serious nonhomicide crimes, as compared to arrests for those crimes). Post, at 2461 2462. But because the mandatory nature of
the sentences here necessarily makes them more common, THE CHIEF JUSTICEs figures do not correspon[d] at all. The higher
ratio is mostly a function of removing the sentencers discretion.
Where mandatory sentencing does not itself account for the number of juveniles serving life-without-parole terms, the evidence
we have of practice supports our holding. Fifteen jurisdictions make life without parole discretionary for juveniles. See Alabama
Brief 25 (listing 12 States); Cal.Penal Code Ann. 190.5(b) (West 2008); Ind.Code 355023(b) (2011); N.M. Stat. 31
1813(B), 311814, 311815.2 (2010). According to available data, only about 15% of all juvenile life-without-parole
sentences come from those 15 jurisdictions, while 85% come from the 29 mandatory ones. See Tr. of Oral Arg. in No. 109646,
p. 19; Human Rights Watch, State Distribution of Youth Offenders Serving Juvenile Life Without Parole (JLWOP), Oct. 2,
2009, online at http://www. hrw.org/news/2009/10/02/state-distribution-juvenile-offenders-serving-juvenile-life-without-parole
(as visited June 21, 2012, and available in Clerk of Courts case file). That figure indicates that when given the choice,
sentencers impose life without parole on children relatively rarely. And contrary to THE CHIEF JUSTICEs argument, see post,
at 2462, n. 2, we have held that when judges and juries do not often choose to impose a sentence, it at least should not be

mandatory. See Woodson v. North Carolina, 428 U.S. 280, 295296, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion)
(relying on the infrequency with which juries imposed the death penalty when given discretion to hold that its mandatory
imposition violates the Eighth Amendment).
11
In response, THE CHIEF JUSTICE complains: To say that a sentence may be considered unusual because so many legislatures
approve it stands precedent on its head. Post, at 2479. To be clear: That description in no way resembles our opinion. We hold
that the sentence violates the Eighth Amendment because, as we have exhaustively shown, it conflicts with the fundamental
principles of Roper, Graham, and our individualized sentencing cases. We then show why the number of States imposing this
punishment does not preclude our holding, and note how its mandatory nature (in however many States adopt it) makes use of
actual sentencing numbers unilluminating.
12
THE CHIEF JUSTICE attempts to distinguish Graham on this point, arguing that there the extreme rarity with which the sentence
in question was imposed could suggest that legislatures did not really intend the inevitable result of the laws they passed. Post, at
2480. But neither Graham nor Thompson suggested such reasoning, presumably because the time frame makes it difficult to
comprehend. Those cases considered what legislators intended when they enacted, at different moments, separate juvenile-transfer
and life-without-parole provisionsby definition, before they knew or could know how many juvenile life-without-parole
sentences would result.
13
See Ala.Code 13A545(f), 13A62(c) (2005 and Cum. Supp. 2011); Ariz.Rev.Stat. Ann. 13752 (West 2010), 41
1604.09(I) (West 2011); Conn. Gen.Stat. 53a35a(1) (2011); Del.Code Ann., Tit. 11, 4209(a) (2007); Fla. Stat. 775.082(1)
(2010); Haw.Rev.Stat. 706656(1) (1993); Idaho Code 184004 (Lexis 2004); Mich. Comp. Laws Ann. 791.234(6)(a) (West
Cum. Supp. 2012); Minn.Stat. Ann. 609.106, subd. 2 (West 2009); Neb.Rev.Stat. 292522 (2008); N.H.Rev.Stat. Ann.
630:1a (West 2007); 18 Pa. Cons.Stat. 1102(a), (b), 61 Pa. Cons.Stat. 6137(a)(1) (Supp.2012); S.D. Codified Laws 226
1(1) (2006), 24154 (2004); Vt. Stat. Ann., Tit. 13, 2311(c)(2009); Wash. Rev.Code 10.95.030(1) (2010).
14
See Del.Code Ann., Tit. 10, 1010 (1999 and Cum. Supp. 2010), Tit. 11, 4209(a) (2007); Fla. Stat. 985.56 (2010), 775.082(1);
Haw.Rev.Stat. 57122(d) (1993), 706656(1); Idaho Code 20508, 20509 (Lexis Cum. Supp. 2012), 184004; Mich.
Comp. Laws Ann. 712A.2d (West 2009), 791.234(6)(a); Neb.Rev.Stat. 43247, 292522 (2008); 42 Pa. Cons.Stat.
6355(e) (2000), 18 Pa. Cons.Stat. 1102. Other States set ages between 8 and 10 as the minimum for transfer, thus exposing those
young children to mandatory life without parole. See S.D. Codified Laws 268C2, 26114 (2004), 2261 (age 10); Vt.
Stat. Ann., Tit. 33, 5204 (2011 Cum. Supp.), Tit. 13, 2311(a) (2009) (age 10); Wash. Rev.Code 9A.04.050, 13.40.110
(2010), 10.95.030 (age 8).
15
See Ala.Code 1215204(a) (Cum. Supp. 2011); Ariz.Rev.Stat. Ann. 13501(A) (West Cum. Supp. 2011); Conn. Gen.Stat.
46b127 (2011); Ill. Comp. Stat. ch. 705, 405/5130(1)(a), (4)(a) (West 2010); La. Child. Code Ann., Art. 305(A) (West Cum.
Supp. 2012); Mass. Gen. Laws, ch. 119, 74 (West 2010); Mich. Comp. Laws Ann. 712A.2(a) (West 2002); Minn.Stat. Ann.
260B.007, subd. 6(b) (West Cum. Supp. 2011), 260B.101, subd. 2 (West 2007); Mo.Rev.Stat. 211.021(1), (2) (2011); N.C.
Gen.Stat. Ann. 7B1501(7), 7B1601(a), 7B2200 (Lexis 2011); N.H.Rev.Stat. Ann. 169B:2(IV) (West Cum. Supp. 2011),
169B:3 (West 2010); Ohio Rev.Code Ann. 2152.12(A)(1)(a) (Lexis 2011); Tex. Family Code Ann. 51.02(2); Va.Code Ann.
16.1241(A), 16.1269.1(B), (D) ( Lexis 2010).
16
Fla. Stat. Ann. 985.557(1) (West Supp.2012); Mich. Comp. Laws Ann. 712A.2(a)(1); Va.Code Ann. 16.1241(A), 16.1
269.1(C), (D).
Graham stated that 123 prisoners were serving life without parole for nonhomicide offenses committed as juveniles, while in 2007
alone 380,480 juveniles were arrested for serious nonhomicide crimes. 560 U.S., at , 130 S.Ct., at 20242025. I use 2,000 as
the number of prisoners serving mandatory life without parole sentences for murders committed as juveniles, because all seem to
accept that the number is at least that high. And the same source Graham used reports that 1,170 juveniles were arrested for murder
and nonnegligent homicide in 2009. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, C. Puzzanchera & B.
Adams, Juvenile Arrests 2009, p. 4 (Dec. 2011).
The Courts reference to discretionary sentencing practices is a distraction. See ante, at 2471 2472, n. 10. The premise of the
Courts decision is that mandatory sentences are categorically different from discretionary ones. So under the Courts own logic,
whether discretionary sentences are common or uncommon has nothing to do with whether mandatory sentences are unusual. In
any event, if analysis of discretionary sentences were relevant, it would not provide objective support for todays decision. The
Court states that about 15% of all juvenile life-without-parole sentencesmeaning nearly 400 sentenceswere imposed at the
discretion of a judge or jury. Ante, at 2471 2472, n. 10. Thus the number of discretionary life without parole sentences for
juvenile murderers, relative to the number of juveniles arrested for murder, is about 1,000 times higher than the corresponding

number in Graham.
3
The Court claims that I take issue with some or all of these precedents and seek to relitigate them. Ante, at 2464, n. 4. Not so:
applying this Courts cases exactly as they stand, I do not believe they support the Courts decision in this case.
I join THE CHIEF JUSTICEs opinion because it accurately explains that, even accepting the Courts precedents, the Courts
holding in todays cases is unsupportable.
Neither the Court nor petitioners argue that petitioners sentences would have been among the modes or acts of punishment that
had been considered cruel and unusual at the time that the Bill of Rights was adopted. Graham, 560 U.S., at , n. 3, 130
S.Ct., at 2048, n. 3 (THOMAS, J., dissenting) (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986)). Nor could they. Petitioners were 14 years old at the time they committed their crimes. When the Bill of Rights was
ratified, 14yearolds were subject to trial and punishment as adult offenders. See Roper v. Simmons, 543 U.S. 551, 609, n. 1, 125
S.Ct. 1183, 161 L.Ed.2d 1 (2005) (SCALIA, J., dissenting). Further, mandatory death sentences were common at that time. See
Harmelin v. Michigan, 501 U.S. 957, 994995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). It is therefore implausible that a 14year
olds mandatory prison sentenceof any length, with or without parolewould have been viewed as cruel and unusual.
The Court later extended Woodson, requiring that capital defendants be permitted to present, and sentencers in capital cases be
permitted to consider, any relevant mitigating evidence, including the age of the defendant. See, e.g., Lockett v. Ohio, 438 U.S.
586, 597608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 110112, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982); Skipper v. South Carolina, 476 U.S. 1, 45, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Johnson v. Texas, 509
U.S. 350, 361368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Whatever the validity of the requirement that sentencers be permitted
to consider all mitigating evidence when deciding whether to impose a nonmandatory capital sentence, the Court certainly was
wrong to prohibit mandatory capital sentences. See Graham v. Collins, 506 U.S. 461, 488500, 113 S.Ct. 892, 122 L.Ed.2d 260
(1993) (THOMAS, J., concurring).
In support of its decision not to apply Harmelin to juvenile offenders, the Court also observes that [o]ur history is replete with
laws and judicial recognition that children cannot be viewed simply as miniature adults. Ante, at 2470 (quoting J.D.B. v. North
Carolina, 564 U.S. , , 131 S.Ct. 2394, 2404, 180 L.Ed.2d 310 (2011) (some internal quotation marks omitted)). That is
no doubt true as a general matter, but it does not justify usurping authority that rightfully belongs to the people by imposing a
constitutional rule where none exists.
Between 2002 and 2010, 17yearolds committed an average combined total of 424 murders and nonnegligent homicides per year.
See Dept. of Justice, Bureau of Justice Statistics, 4, Arrests, Age of persons arrested (Table 4.7).
As the Court noted in Mistretta v. United States, 488 U.S. 361, 366, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), Congress passed the
Sentencing Reform Act of 1984 to eliminate discretionary sentencing and parole because it concluded that these practices had led
to gross abuses. The Senate Report for the 1984 bill rejected what it called the outmoded rehabilitation model for federal
criminal sentencing. S.Rep. No. 98225, p. 38 (1983). According to the Report, almost everyone involved in the criminal justice
system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really
detect whether or when a prisoner is rehabilitated. Ibid. The Report also observed that the indeterminate-sentencing system had
two unjustifi[ed] and shameful consequences. The first was the great variation among sentences imposed by different judges
upon similarly situated offenders. The second was uncertainty as to the time the offender would spend in prison. Each was a
serious impediment to an evenhanded and effective operation of the criminal justice system. Mistretta, supra, at 366, 109 S.Ct.
647 (quoting S.Rep. No. 98225, at 38, 65 (citation omitted)).

End of Document
2013 Thomson Reuters. No claim to original U.S. Government Works.
Cal.
PEOPLE v. CABALLERO
Cite as 282 P.3d 291 (Cal. 2012)
On the other hand, Officer Trapp immediately followed her less than artful statement,
Okay, perhaps you didnt understand your
rights, with the pointed question, [W]hat
the detective wants to know right now is if
youre willing to speak to him right now
without a lawyer present? (Italics added.)
That inquiry cut right to the core of the
matter, making unmistakably clear to defendant that what he was being asked was if he
was willing to proceed with the interview
right now without a lawyer present. Officer Trapp had admonished defendant moments earlier of each of his Miranda rights,
and he had clearly responded that he understood each of them. Once that question was
put to defendant, he quickly and decisively
expressed his willingness to proceed with the
interview without a lawyer present, confirming for the officer several times that he
wished to proceed in that fashion and understood the choice was his. As previously noted, [a] suspects expressed willingness to
answer questions after acknowledging an understanding of his or her Miranda rights has
itself been held sufficient to constitute an
implied waiver of such rights. [Citations.]
(Cruz, supra, 44 Cal.4th at pp. 667668, 80
Cal.Rptr.3d 126, 187 P.3d 970.) We find that
defendants waiver of his Miranda rights,
including his right to counsel, was made
with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon it.
(Moran v. Burbine, supra, 475 U.S. at p. 421,
106 S.Ct. 1135.)
In sum, the record establishes that defendant wished to tell Detective Blazek his side
of the story, and having been read his Miranda rights by Officer Trapp, and having
indicated he understood them, was willing to
proceed with the interview right now without a lawyer present. Under the totality of
the circumstances, we conclude defendants
waiver of his Miranda rights, including his
purpose of custodial interrogation. (People v.
Smith (2007) 40 Cal.4th 483, 503, 54 Cal.Rptr.3d
245, 150 P.3d 1224; see also People v. Bradford
(1997) 14 Cal.4th 1005, 10451046, 60 Cal.
Rptr.2d 225, 929 P.2d 544.) (Williams, supra,
49 Cal.4th at p. 429, 111 Cal.Rptr.3d 589, 233
P.3d 1000.) And the high court has repeatedly
cautioned, [W]e have never read the Constitution to require that the police supply a suspect
with a flow of information to help him calibrate
291
right to counsel, was voluntary, knowing and

intelligent. (Miranda, supra, 384 U.S. at p.
475, 86 S.Ct. 1602.) 5
CONCLUSION
The judgment of the Court of Appeal is
reversed, and the matter remanded to that
court for further proceedings consistent with
the views expressed herein.
WE CONCUR: CANTILSAKAUYE,
C.J., and KENNARD, WERDEGAR, CHIN,
CORRIGAN, LIU, JJ.
,
55 Cal.4th 262
145 Cal.Rptr.3d 286
The PEOPLE, Plaintiff and Respondent,

v.
Rodrigo CABALLERO, Defendant
and Appellant.
In re Rodrigo Caballero,
on Habeas Corpus.
No. S190647.
Supreme Court of California.
Aug. 16, 2012.
Background: Juvenile defendant was convicted in the Superior Court, Los Angeles
County, No. MA043902, Hayden A. Zacky,
J., of three counts of willful, deliberate,
and premeditated attempted murder, with
findings that he personally and intentionally discharged a firearm, inflicted great
bodily injury upon one victim, and committed the crimes for the benefit of a criminal
his self-interest in deciding whether to speak or
stand by his [Miranda ] rights. [Citations.]
(Moran v. Burbine, supra, 475 U.S. at p. 422, 106
S.Ct. 1135.)
5.
Because we have found no Miranda violation,

we have no occasion to consider the Peoples
harmless error argument.
292
Cal.
282 PACIFIC REPORTER, 3d SERIES
street gang. Defendant appealed, and the

Court of Appeal affirmed. The Supreme
Court granted review, superseding the
opinion of the Court of Appeal.
Holding: The Supreme Court, Chin, J.,
held that defendants total sentence of 110
years to life constituted cruel and unusual
punishment.
Werdegar, J., concurred with opinion in
which Liu, J., concurred.
People v. Caballero, 119 Cal.Rptr.3d 920, superseded.
The Eighth Amendment to the federal
constitution applies to the states. U.S.C.A.
Const.Amend. 8.
Although the state is by no means required to guarantee eventual freedom to a
juvenile convicted of a non-homicide offense,
the Eighth Amendment requires the state to
afford the juvenile offender a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, and a life
without parole sentence improperly denies
the juvenile offender a chance to demonstrate growth and maturity.
U.S.C.A.
COnst.Amend. 8.
1607
Juvenile defendants total sentence of
110 years to life for attempted murder did
not provide him with a realistic opportunity
to obtain release through demonstration of
growth and maturity, and thus constituted
cruel and unusual punishment. U.S.C.A.
Const.Amend. 8; Wests Ann.Cal.Penal Code
187, 664.
See 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment,
118; 3 Witkin & Epstein, Cal. Criminal Law (2011 supp.) Punishment,
114A.

Sentencing a juvenile offender for a nonhomicide offense to a term of years with a
parole eligibility date that falls outside the
juvenile offenders natural life expectancy

constitutes cruel and unusual punishment in
violation of the Eighth Amendment; although
proper authorities may later determine that
youths should remain incarcerated for their
natural lives, the state may not deprive them
at sentencing of a meaningful opportunity to
demonstrate their rehabilitation and fitness
to reenter society in the future. U.S.C.A.
Const.Amend. 8.
5. Infants O3011
The sentencing court in a non-homicide
adult prosecution involving a juvenile defendant must consider all mitigating circumstances attendant in the juveniles crime and
life, including but not limited to his or her
chronological age at the time of the crime,
whether the juvenile offender was a direct
perpetrator or an aider and abettor, and his
or her physical and mental development, so
that it can impose a time when the juvenile
offender will be able to seek parole from the
parole board; the Board of Parole Hearings
will then determine whether the juvenile offender must be released from prison based
on demonstrated maturity and rehabilitation.
Kosnett & Durchfort and David E. Durchfort, Los Angeles, for Defendant and Appellant.
L. Richard Braucher, Susan L. Burrell,
Corene Thaedra Kendrick, Richmond, and
Jonathan Laba for Pacific Juvenile Defender
Center as Amicus Curie on behalf of Defendant and Appellant.
Constance de la Vega, Kyra Millich, San
Francisco; Jessica R. Feierman, Marsha
Levick, Emily Keller, San Jose, Joanna Visser; Maureen Pacheco; Elizabeth M. Calvin;
Sheryl Gordon McCloud, Seattle; Paula
Pearlman and Shawna Parks, Los Angeles,
for Juvenile Law Center, Human Rights Advocates, Human Rights Watch, Loyola Law
School Center for Law and Policy, the National Association of Criminal Defense Attorneys and the Disability Rights Legal Center
as Amici Curie on behalf of Defendant and
Appellant.
Edmund G. Brown, Jr., and Kamala D.
Harris, Attorneys General, Dane R. Gillette,
Cal.
PEOPLE v. CABALLERO
Cite as 282 P.3d 291 (Cal. 2012)
Chief Assistant Attorney General, Pamela C.

Hamanaka, Assistant Attorney General,
Chung L. Mar, Lauren E. Dana, Jaime L.
Fuster and Lawrence M. Daniels, Deputy
Attorneys General, for Plaintiff and Respondent.
CHIN, J.
[1] In Graham v. Florida (2010) 560 U.S.
, 130 S.Ct. 2011, 176 L.Ed.2d 825 (Graham ), the high court held that the Eighth
Amendment prohibits states from sentencing
a juvenile convicted of nonhomicide offenses
to life imprisonment without the possibility of
parole. (Id. at p. , 130 S.Ct. at p.
2030.) 1 We must determine here whether a
110yeartolife sentence imposed on a juvenile convicted of nonhomicide offenses contravenes Grahams mandate against cruel
and unusual punishment under the Eighth
Amendment. We conclude it does.
FACTUAL
AND
PROCEDURAL BACKGROUND
On the afternoon of June 6, 2007, 16year

old defendant, Rodrigo Caballero, opened
fire on three teenage boys who were members of a rival gang. Adrian Bautista, Carlos
Vargas, and Vincent Valle, members of the
Val Verde Park Gang, were rounding a street
corner on foot when defendant jumped out of
a green Toyota and yelled out the name of
his gang, either Vario Lancas or Lancas.
Vargas responded by shouting Val Verde.
Defendant began shooting at the group.
Neither Vargas nor Valle were hit by the
gunfire; Bautista was hit in the upper back,
near his shoulder blade.
A jury convicted defendant of three counts
of attempted murder (Pen.Code, 664, 187,
subd. (a)).2 The jury found true that defendant personally and intentionally discharged
a firearm ( 12022.53, subds.(c)(d)) and inflicted great bodily harm on one victim
( 12022.7), and that defendant committed
the crimes for the benefit of a criminal street
gang ( 186.22, subd. (b)(1)(C)). Defendant,
a diagnosed schizophrenic, testified in his
own behalf after he was treated with antipsychotic medication. He told the jury both
1.
The Eighth Amendment applies to the states.

(Robinson v. California (1962) 370 U.S. 660, 82
S.Ct. 1417, 8 L.Ed.2d 758.)
293
that he was straight trying to kill somebody and that he did not intend to kill
anyone. The trial court sentenced defendant
to 15 years to life for the first attempted
murder count, plus a consecutive 25 years to
life
for
the
firearm
enhancement.
( 12022.53, subd. (d).) For the second attempted murder, the court imposed an additional consecutive term of 15 years to life,
plus 20 years for the firearm enhancement
on that count. ( 12022.53, subd. (c).) On the
third attempted murder count, the court sentenced defendant to another consecutive
term of 15 years to life, plus 20 years for the
corresponding
firearm
enhancement.
( 12022.53, subd. (c)). Defendants total
sentence was 110 years to life. The Court of
Appeal affirmed the trial courts judgment in
its entirety.
We granted defendants petition for review
to determine whether Graham prohibits imposition of the sentence here.
DISCUSSION
In Graham, the 16yearold defendant,
Terrance Graham, committed armed burglary and attempted armed robbery, was sentenced to probation, and subsequently violated the terms of his probation when he
committed other crimes. (Graham, supra,
560 U.S. at p. , 130 S.Ct. at p. 2020.)
The trial court revoked his probation and
sentenced him to life in prison for the burglary. (Ibid.) Grahams sentence amounted
to a life sentence without the possibility of
parole because Florida had abolished its parole system, leaving Graham with no possibility of release unless he was granted executive clemency. (Id. at p. , 130 S.Ct. at
p. 2015.)
The high court stated that nonhomicide
crimes differ from homicide crimes in a
moral sense and that a juvenile nonhomicide offender has a twice diminished moral
culpability as opposed to an adult convicted
of murderboth because of his crime and
because of his undeveloped moral sense.
(Graham, supra, 560 U.S. at p. , 130
2.
All statutory references are to the Penal Code

unless otherwise indicated.
294
Cal.
S.Ct. at p. 2027.) The court relied on studies

showing that developments in psychology
and brain science continue to show fundamental differences between juvenile and
adult minds. For example, parts of the brain
involved in behavior control continue to mature through late adolescence. [Citations.]
Juveniles are [also] more capable of change
than are adults, and their actions are less
likely to be evidence of irretrievably depraved character than are the actions of
adults. (Id. at p. , 130 S.Ct. at p. 2026,
quoting Roper v. Simmons (2005) 543 U.S.
551, 570, 125 S.Ct. 1183, 161 L.Ed.2d 1.) No
legitimate penological interest, the court concluded, justifies a life without parole sentence
for juvenile nonhomicide offenders. (Id. at p.
, 130 S.Ct. at p. 2030.)
[2] Although the state is by no means
required to guarantee eventual freedom to a
juvenile convicted of a nonhomicide offense,
Graham holds that the Eighth Amendment
requires the state to afford the juvenile offender a meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation, and that [a] life without parole sentence improperly denies the juvenile
offender a chance to demonstrate growth and
maturity. (Graham, supra, 560 U.S. at p.
, 130 S.Ct. at pp. 20292030.) The court
observed that a life without parole sentence
is particularly harsh for a juvenile offender
who will on average serve more years and a
greater percentage of his life in prison than
an adult offender. (Id. at p. , 130 S.Ct.
at p. 2028.) Graham likened a life without
parole sentence for nonhomicide offenders to
the death penalty itself, given their youth
and the prospect that, as the years progress,
juveniles can reform their deficiencies and
become contributing members of society.
(Ibid.)
The People assert that Grahams ban on
life without parole sentences does not apply
3.
The People also rely on Lockyer v. Andrade

(2003) 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d
144 for the proposition that a juvenile offender
may receive consecutive mandatory terms exceeding his or her life expectancy without implicating the prohibition against cruel and unusual
punishment. In our view, no such conclusion
may be drawn. In fact, in Lockyer the high court
noted that it has never provided specific guid-
to juvenile offenders who commit attempted

murder, with its requisite intent to kill. The
People also claim that a cumulative sentence
for distinct crimes does not present a cognizable Eighth Amendment claim, concluding
that each of defendants sentences was permissible individually because each included
the possibility of parole within his lifetime.3
In addition, the Court of Appeal reasoned
that Graham applied a categorical rule specifically limited to juvenile nonhomicide offenders receiving an explicitly designated life
without parole sentence: [I]f [Graham ] had
intended to broaden the class of offenders
within the scope of its decision, it would have
[included] TTT any juvenile offender who received the functional equivalent of a life sentence without the possibility of parole for a
nonhomicide offense. The Court of Appeal
found support for its conclusion in Justice
Alitos dissent from Graham: nothing in the
Courts opinion affects the imposition of a
sentence to a term of years without the
possibility of parole. (Graham, supra, 560
U.S. at p. , 130 S.Ct. at p. 2058 (dis. opn.
of Alito, J.). Grahams scope and application, however, were recently clarified in Miller v. Alabama (2012) 567 U.S. , 132
S.Ct. 2455, 183 L.Ed.2d 407 (Miller ).)
In Miller, the United States Supreme
Court extended Grahams reasoning (but not
its categorical ban) to homicide cases, and, in
so doing, made it clear that Grahams flat
ban on life without parole sentences for
juvenile offenders in nonhomicide cases applies to their sentencing equation regardless
of intent in the crimes commission, or how a
sentencing court structures the life without
parole sentence. (Miller, supra, 567 U.S.
, 132 S.Ct. at pp. 2465, 2469.) The high
court was careful to emphasize that Grahams categorical bar on life without parole
applied only to nonhomicide crimes. (Id.
at p. , 132 S.Ct. at p. 2465.) But the
court also observed that none of what [Graance in determining whether a particular sentence for a term of years can violate the Eighth
Amendment, observing that it had not established a clear or consistent path for courts to
follow. (Id. at p. 72, 123 S.Ct. 1166.) We note
that the term life expectancy means the normal life expectancy of a healthy person of defendants age and gender living in the United States.
Cal.
PEOPLE v. CABALLERO
Cite as 282 P.3d 291 (Cal. 2012)
ham ] said about childrenabout their distinctive (and transitory) mental traits and
environmental vulnerabilitiesis crime-specific. Those features are evident in the same
way, and to the same degree, when TTT a
botched robbery turns into a killing. So
Grahams reasoning implicates any life-without-parole sentence imposed on a juvenile,
even as its categorical bar relates only to
nonhomicide offenses. (Miller, supra, 567
U.S. , 132 S.Ct. at p. 2465.) Miller
therefore made it clear that Grahams flat
ban on life without parole sentences applies
to all nonhomicide cases involving juvenile
offenders, including the term-of-years sentence that amounts to the functional equivalent of a life without parole sentence imposed
in this case.4
[3] Defendant in the present matter will
become parole eligible over 100 years from
now. ( 3046, subd. (b) [requiring defendant
serve a minimum of 110 years before becoming parole eligible].) Consequently, he would
have no opportunity to demonstrate growth
and maturity to try to secure his release, in
contravention of Grahams dictate. (Graham, supra, 560 U.S. at p. , 130 S.Ct. at
p. 2029; see People v. Mendez (2010) 188
Cal.App.4th 47, 5051, 114 Cal.Rptr.3d 870
[holding that a sentence of 84 years to life
was the equivalent of life without parole under Graham, and therefore cruel and unusual
punishment].) Grahams analysis does not
focus on the precise sentence meted out.
Instead, as noted above, it holds that a state
must provide a juvenile offender with some
realistic opportunity to obtain release from
prison during his or her expected lifetime.
S.Ct. at p. 2034.)
4.
Although Miller concluded that Grahams categorical ban on life without parole sentences applies only to all nonhomicide offenses, the court
emphasized that in homicide cases, states are
forbidden from imposing a [m]andatory life
without parole for a juvenile. (Miller, supra,
567 U.S. , 132 S.Ct. at p. 2464.) The high
court noted that such mandatory sentences preclude consideration of juveniles chronological
age and its hallmark featuresamong them, immaturity, impetuosity, and failure to appreciate
risks and consequences. It prevents taking into
account the family and home environment that
surround themno matter how brutal or dysfunctional. (Ibid.) Thus, in Miller the high court
295
CONCLUSION
[4, 5] Consistent with the high courts
holding in Graham, supra, 560 U.S. , 130
S.Ct. 2011, we conclude that sentencing a
juvenile offender for a nonhomicide offense
to a term of years with a parole eligibility
date that falls outside the juvenile offenders
natural life expectancy constitutes cruel and
unusual punishment in violation of the
Eighth Amendment. Although proper authorities may later determine that youths
should remain incarcerated for their natural
lives, the state may not deprive them at
sentencing of a meaningful opportunity to
demonstrate their rehabilitation and fitness
to reenter society in the future. Under Grahams nonhomicide ruling, the sentencing
court must consider all mitigating circumstances attendant in the juveniles crime and
life, including but not limited to his or her
chronological age at the time of the crime,
whether the juvenile offender was a direct
perpetrator or an aider and abettor, and his
or her physical and mental development, so
that it can impose a time when the juvenile
offender will be able to seek parole from the
parole board. The Board of Parole Hearings
will then determine whether the juvenile offender must be released from prison based
on demonstrated maturity and rehabilitation. (Id. at p. , 130 S.Ct. at p. 2030.)
Defendants who were sentenced for crimes
they committed as juveniles who seek to
modify life without parole or equivalent de
facto sentences already imposed may file petitions for a writ of habeas corpus in the trial
court in order to allow the court to weigh the
mitigating evidence in determining the extent of incarceration required before parole
did not foreclose a sentencers ability to determine whether it was dealing with homicide cases
and the rare juvenile offender whose crime
reflects irreparable corruption. (Id. at p. ,
132 S.Ct. at p. 2469, quoting Roper, supra, 543
U.S. at p. 573, 125 S.Ct. 1183; Graham, supra,
560 U.S. , 130 S.Ct. at p. 2026.) The court
requires sentencers in homicide cases to take
into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in prison. (Miller,
supra, 567 U.S. , 132 S.Ct. at p. 2469.) We
leave Millers application in the homicide context
to a case that poses the issue.
296
Cal.
hearings. Because every case will be different, we will not provide trial courts with a
precise time frame for setting these future
parole hearings in a nonhomicide case.
However, the sentence must not violate the
defendants Eighth Amendment rights and
must provide him or her a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation under
Grahams mandate.
We reverse the judgment of the Court of
Appeal and remand the matter for reconsideration in light of this opinion.5
WE CONCUR: CANTILSAKAUYE,
C.J., KENNARD, BAXTER, and
CORRIGAN, JJ.
Concurring Opinion by WERDEGAR, J.
As the majority recognizes, the United
States Supreme Court held in Graham v.
Florida (2010) 560 U.S. , , 130 S.Ct.
2011, 2034 (Graham ) that [t]he Constitution
prohibits the imposition of a life without parole sentence on a juvenile offender who did
not commit homicide. A State need not
guarantee the offender eventual release, but
if it imposes a sentence of life it must provide
him or her with some realistic opportunity to
obtain release before the end of that term.
Consequently, I concur in the majoritys
holding that, consistent with Graham, sentencing a juvenile offender for a nonhomicide
offense to a term of years with a parole
eligibility date that falls outside the juvenile
offenders natural life expectancy constitutes
cruel and unusual punishment in violation of
the Eighth Amendment. (Maj. opn., ante,
145 Cal.Rptr.3d at p. 291, 282 P.3d at p. 295.)
In so holding, however, we are extending the
high courts jurisprudence to a situation that
court has not had occasion to address.
Recently, the United States Supreme
Court addressed a different aspect of this
issue: juvenile offenders who commit homicide offenses. (Miller v. Alabama (2012) 567
U.S. , 132 S.Ct. 2455, 183 L.Ed.2d 407
(Miller ).) Miller concluded that even for
5.
We urge the Legislature to enact legislation

establishing a parole eligibility mechanism that
provides a defendant serving a de facto life sentence without possibility of parole for nonhomi-
juvenile homicide offenders, a mandatory

sentence of life imprisonment without the
possibility of parole violates the proportionality requirement of the Eighth Amendment to
the United States Constitution because it
requires that all children convicted of homicide receive lifetime incarceration without
possibility of parole, regardless of their age
and age-related characteristics and the nature of their crimesTTTT (Miller, 567 U.S. at
p. , 132 S.Ct. at p. 2475.) For homicide
offenses, then, Miller eschewed the categorical bar on life without parole sentences
imposed in Graham (Miller, 567 U.S. at p.
, 132 S.Ct. at p. 2465), and instead left
open the possibility that juvenile murderers
could, in a sentencing courts discretion, be
sentenced to spend the rest of their lives in
prison with no hope of parole (short of a
grant of executive clemency).
Defendant Rodrigo Caballero was 16 years
old, and thus a juvenile, when he committed
his crimes. In light of Miller, we must first
decide whether he committed a homicide or a
nonhomicide offense. The jury convicted defendant of three counts of attempted premeditated and deliberate murder. (Pen.
Code, 664, subd. (a).) Two of his victims
escaped physical injury completely, while one
was injured but survived the shooting. As
Graham explains, such [s]erious nonhomicide crimes may be devastating in their
harm TTT but in terms of moral depravity
and of the injury to the person and to the
public, TTT they cannot be compared to
murder in their severity and irrevocability. [Citing Kennedy v. Louisiana (2008)
554 U.S. 407, 438, 128 S.Ct. 2641, 171
L.Ed.2d 525.] This is because [l]ife is over
for the victim of the murderer, but for the
victim of even a very serious nonhomicide
crime, life TTT is not over and normally is
not beyond repair. [Citing Coker v. Georgia
(1977) 433 U.S. 584, 598, 97 S.Ct. 2861, 53
L.Ed.2d 982 (plur.opn.).] Although an offense like robbery or rape is a serious crime
deserving serious punishment, [citation],
those crimes differ from homicide crimes in a
cide crimes that he or she committed as a juvenile with the opportunity to obtain release on a
showing of rehabilitation and maturity.
PEOPLE v. CABALLERO
Cite as 282 P.3d 291 (Cal. 2012)
moral sense. (Graham, supra, 560 U.S. at

p. , 130 S.Ct. at p. 2027.) Because the
crime of attempted murder, even when premeditated and deliberate, does not rise to the
severity or irrevocability of actually taking
anothers life, it must be classified as a nonhomicide offense within the meaning of Graham.1 (See Manuel v. State (Fla. 2nd DCA
2010) 48 So.3d 94, cert. den. sub nom. Florida v. Manuel (2011) U.S. , 132 S.Ct.
446, 181 L.Ed.2d 259 [finding attempted
murder a nonhomicide offense under Graham ].) Like the majority, therefore, I conclude this case falls within Grahams categorical bar prohibiting life without parole
sentences for juveniles who commit nonhomicide offenses.
Because Graham imposes a flat ban on
such sentences (Miller, supra, 567 U.S. at p.
, 132 S.Ct. at p. 2465), we must next
determine whether defendants sentence of
110 years to life is the legal equivalent of life
without parole. Although respondent appears to concede that defendants sentence is
the functional equivalent of a life without
parole term, they nevertheless argue his sentence is distinguishable from the sentence
prohibited in Graham because it is comprised of component parts that only when
added together constitute a term longer than
a person can serve in a normal lifetime. For
this purported distinction they cite comments
from the Graham dissenters. (See Graham,
supra, 560 U.S. at p. , fn. 11, 130 S.Ct. at
1.
Graham itself is not crystal clear on this point.

As respondent points out, Graham at one point
says [t]he Court has recognized that defendants
who do not kill, intend to kill, or foresee that life
will be taken are categorically less deserving of
the most serious forms of punishment than are
murderers. (Graham, supra, 560 U.S. at p.
, 130 S.Ct. at p. 2027, italics added.) Here,
defendants convictions for attempted murder
necessarily demonstrate the jury found he acted
with the intent to kill. (People v. Gonzalez (2012)
54 Cal.4th 643, 653, 142 Cal.Rptr.3d 893, 278
P.3d 1242.)
Graham also relied heavily on a scholarly paper to conclude that nationwide there are only
109 juvenile offenders serving sentences of life
without parole for nonhomicide offenses (Graham, supra, 560 U.S. at p. , 130 S.Ct. at p.
2023), but that paper defined homicide crimes to
include attempted murder (Annino et al., Juvenile
Life Without Parole for NonHomicide Offenses:
Florida Compared to Nation, Fla. St. U., Pub.
Int. L. Center, Sept. 14, 2009, p. 4 [for purposes
Cal.
297
p. 2052, fn. 11 (dis. opn. of Thomas, J.)

[opining that the Graham majority excludes
from its analysis all juveniles sentenced to
lengthy term-of-years sentences (e.g., 70 or
80 years imprisonment)]; id. at p. , 130
S.Ct. at p. 2058 (dis. opn. of Alito, J.) [Nothing in the Courts opinion affects the imposition of a sentence to a term of years without
the possibility of parole.].)
Characterization by the Graham dissenters of the scope of the majority opinion is, of
course, dubious authority (see Glover v.
Board of Retirement (1989) 214 Cal.App.3d
1327, 1337, 263 Cal.Rptr. 224 [the majority
opinion of the Supreme Court states the law
and TTT a dissenting opinion has no function
except to express the private view of the
dissenter. ] ), but in any event the purported distinction between a single sentence of
life without parole and one of component
parts adding up to 110 years to life is unpersuasive. The gist of Graham is not only that
life sentences for juveniles are unusual as a
statistical matter, they are cruel as well because developments in psychology and brain
science continue to show fundamental differences between juvenile and adult minds
(Graham, supra, 560 U.S. at p. 130
S.Ct. at p. 2026), [j]uveniles are more capable of change than are adults, and their
actions are less likely to be evidence of irretrievably depraved character than are the
actions of adults (ibid.), and that accordingof the study, [i]ndividuals convicted of attempted homicide TTT are defined as homicide offenders] ). Finally, in recognizing the worldwide
consensus against imprisoning juveniles for life
with no chance of parole, Graham noted that
only two countriesthe United States and Israelimpose that sentence in practice, and that
all of the seven Israeli prisoners whom commentators have identified as serving life sentences for juvenile crimes were convicted of
homicide or attempted homicide. (Graham, supra, 560 U.S. at p. , 130 S.Ct. at p. 2033,
italics added.)
Despite these slight inconsistencies in Grahams analysis, the main thrust of its reasoning is
that crimes resulting in the death of another
human being are qualitatively different from all
others, both in their severity, moral depravity,
and irrevocability, and the Eighth Amendment to
the United States Constitution demands courts
take cognizance of that fact when sentencing
those who committed their crimes while still
children.
298
Cal.
ly, a greater possibility exists that a minors character deficiencies will be reformed (id. at pp. , 130 S.Ct. at pp.
20262027).
Further, the high court in Graham noted
that, [w]ith respect to life without parole for
juvenile nonhomicide offenders, none of the
goals of penal sanctions that have been recognized as legitimateretribution, deterrence, incapacitation, and rehabilitation [citation]provides an adequate justification.
S.Ct. at p. 2028.) First, although [t]he
heart of the retribution rationale is that a
criminal sentence must be directly related to
the personal culpability of the criminal offender (ibid.), this concern applies equally
whether the sentence is one of life without
parole or a term of years that cannot be
served within the offenders lifetime. Second, societys interest in deterring socially
unacceptable behavior by imposing long sentences does not justify sentences of life without parole for juvenile nonhomicide offenders
[b]ecause juveniles lack of maturity and
underdeveloped sense of responsibility TTT
often result in impetuous and ill-considered
actions and decisions, [citation], [such that]
they are less likely to take a possible punishment into consideration when making decisions. (Id. at pp. , 130 S.Ct. at
pp. 20282029.) Third, although lifetime incapacitation will admittedly prevent criminals
from reoffending, imposing that severe punishment on juvenile nonhomicide offenders
labels them as incorrigible and incapable of
change, and thus denies to them a chance to
demonstrate growth and maturity. (Id. at
p. , 130 S.Ct. at p. 2029.) These concerns remain true whether the sentence is
life without parole or a term of years exceeding the offenders life expectancy.
The fourth consideration mentioned by the
Graham courtrehabilitationis perhaps
the most salient factor as applied to underage offenders. As Graham explained: A
sentence of life imprisonment without parole
TTT cannot be justified by the goal of rehabilitation. The penalty forswears altogether
the rehabilitative ideal. By denying the defendant the right to reenter the community,
2.
Because the constitutionality of any new sentence may be challenged on appeal, this court
the State makes an irrevocable judgment

about that persons value and place in society. This judgment is not appropriate in
light of a juvenile nonhomicide offenders capacity for change and limited moral culpability. (Graham, supra, 560 U.S. at pp.
, 130 S.Ct. at pp. 20292030.) Like a
sentence of life without parole, a prison sentence of such length that it cannot be served
within an offenders lifetime similarly denies
his or her right to reenter the community
(ibid.), and so equally implicates Grahams
reasoning that concerns over rehabilitation
cannot justify a lifetime of imprisonment for
nonhomicide juvenile offenders.
Although the facts of this case differ from
those in Graham in that defendant was not
sentenced to a single term of life without
parole, I agree with the majority that Graham applies. Because defendant committed
three nonhomicide crimes while still a juvenile and was sentenced to the functional
equivalent of life in prison with no possibility
of parole, he is entitled to the benefit of what
Miller termed Grahams categorical bar
(Miller, supra, 567 U.S. at p. , 132 S.Ct.
at p. 2465) on sentences of life in prison with
no meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation (Graham, supra, 560 U.S. at p. ,
130 S.Ct. at p. 2030). I also agree that the
Legislature is an appropriate body to establish a mechanism to implement Grahams
directives for the future (maj. opn., ante, 145
Cal.Rptr.3d at p. 291, fn. 5, 282 P.3d at p.
296, fn. 5), and that every case will be
different (id. at p. 291, 282 P.3d at p. 296).
But irrespective of whether the Legislature,
in the future, steps in to enact procedures
under which juveniles in defendants position
may be resentenced, the trial court in this
case must resentence defendant to a term
that does not violate his rights. (See In re
Hawthorne (2005) 35 Cal.4th 40, 24 Cal.
Rptr.3d 189, 105 P.3d 552 [affording the defendant relief under Atkins v. Virginia
(2002) 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 when his case did not qualify for
the preconviction proceedings set forth in
Pen.Code, 1376].) 2 Accordingly, I would
may be called upon to provide further guidance.
Cal.
PEOPLE v. CABALLERO
Cite as 282 P.3d 291 (Cal. 2012)
provide the lower court greater guidance on

remand in this case, for we have before us a
defendant on whom an unconstitutional sentence was pronounced. That violation must
be remedied. Graham does not require defendant be given a parole hearing sometime
in the future; it prohibits a court from sentencing him to such a term lacking that
possibility at the outset. Therefore, I would
remand the case to the trial court with directions to resentence defendant to a term
that does not violate his constitutional rights,
that is, a sentence that, although undoubtedly lengthy, provides him with a meaningful
opportunity to obtain release based on dem-
299
onstrated maturity and rehabilitation.

(Graham, 560 U.S. at p. , 130 S.Ct. at p.
2030.)
With those caveats in mind, I concur in the
majoritys decision to reverse the judgment
of the Court of Appeal.
I CONCUR: LIU, J.
1183
ROPER v. SIMMONS
543 U.S. 551
Cite as 125 S.Ct. 1183 (2005)
language exists. The earlier appropriations statSutes647 unambiguously provided

unrestricted lump-sum appropriations.
We therefore cannot accept the Governments interpretation of 314.
Hence we, like the Federal Circuit, are
left with the second interpretation, which
we adopt, concluding that Congress intended it in the circumstances. See Zadvydas, supra, at 689, 121 S.Ct. 2491; cf.
334 F.3d, at 1092. So interpreted, the
provision does not bar recovery here.
For these reasons, we affirm the judgment of the Federal Circuit; we reverse
the judgment of the Tenth Circuit; and we
remand the cases for further proceedings
consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE took no part in
the decision of these cases.
Justice SCALIA, concurring in part.
I join the Courts opinion except its reliance, ante, at 1179, on a Senate Committee
Report to establish the meaning of the
statute at issue here. That source at most
indicates the intent of one Committee of
one Chamber of Congressand realistically, probably not even that, since there is
no requirement that Committee members
vote on, and small probability that they
even read, the entire text of a staff-generated report. It is a legal fiction to say that
this expresses the intent of the United
States Congress. And it is in any event
not the inadequately expressed intent of
the Congress, but the meaning of what it
enacted, that we should be looking for.
The only virtue of this cited source (and its
entire allure) is that it says precisely what
the Court wants.
543 U.S. 551, 161 L.Ed.2d 1
Donald P. ROPER, Superintendent,

Potosi Correctional Center,
Petitioner,
v.
Christopher SIMMONS.
No. 03633.
Argued Oct. 13, 2004.
Background: Defendant convicted after
he turned 18 of committing first-degree
murder when he was 17, and sentenced to
death, 944 S.W.2d 165, petitioned for writ
of habeas corpus. The Missouri Supreme
Court, Laura Denvir Stith, J., 112 S.W.3d
397, granted relief. Certiorari was granted.
Holding: The Supreme Court, Justice
Kennedy, held that execution of individuals
who were under 18 years of age at time of
their capital crimes is prohibited by
Eighth and Fourteenth Amendments; abrogating Stanford v. Kentucky, 492 U.S.
361, 109 S.Ct. 2969, 106 L.Ed.2d 306.
Affirmed.
Justice Stevens concurred and filed opinion in which Justice Ginsburg joined.
Justice OConnor dissented and filed opinion.
Justice Scalia dissented and filed opinion
in which Chief Justice Rehnquist and Justice Thomas joined.

Court must refer to evolving standards of decency that mark progress of
maturing society when determining which
punishments are so disproportionate as to
be cruel and unusual, within meaning of
Eighth Amendment prohibition. U.S.C.A.
Const.Amend. 8.
1184
543 U.S. 551
At age 17, respondent Simmons

planned and committed a capital murder.
After he had turned 18, he was sentenced
to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. This
Court then held, in Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335,
that the Eighth Amendment, applicable to
the States through the Fourteenth Amend-
ment, prohibits the execution of a mentally

retarded person. Simmons filed a new
petition for state postconviction relief, arguing that Atkins reasoning established
that the Constitution prohibits the execution of a juvenile who was under 18 when
he committed his crime. The Missouri
Supreme Court agreed and set aside Simmons death sentence in favor of life imprisonment without eligibility for release.
It held that, although Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106
L.Ed.2d 306, rejected the proposition that
the Constitution bars capital punishment
for juvenile offenders younger than 18, a
national consensus has developed against
the execution of those offenders since
Stanford.
Held: The Eighth and Fourteenth
Amendments forbid imposition of the
death penalty on offenders who were under the age of 18 when their crimes were
committed. Pp. 11901200.
(a) The Eighth Amendments prohibition against cruel and unusual punishments must be interpreted according to
its text, by considering history, tradition,
and precedent, and with due regard for its
purpose and function in the constitutional
design. To implement this framework this
Court has established the propriety and
affirmed the necessity of referring to the
evolving standards of decency that mark
the progress of a maturing society to
determine which punishments are so disproportionate as to be cruel and unusual.
Trop v. Dulles, 356 U.S. 86, 100101, 78
S.Ct. 590, 2 L.Ed.2d 630. In 1988, in
Thompson v. Oklahoma, 487 U.S. 815,
818838, 108 S.Ct. 2687, 101 L.Ed.2d 702, a
plurality determined that national standards of decency did not permit the execution of any offender under age 16 at the

282, 50 L.Ed. 499.

1667
Capital punishment must be limited to
those offenders who commit narrow category of most serious crimes and whose
extreme culpability makes them most deserving of execution.
1652
State must give narrow and precise
definition to aggravating factors that can
result in capital sentence.
1702
In any capital case, defendant has
wide latitude to raise as mitigating factor
any aspect of his or her character or record and any circumstances of offense that
defendant proffers as basis for sentence
less than death.
5. Constitutional Law O4743
Eighth and Fourteenth Amendments
forbid imposition of death penalty on offenders who were under age of 18 when
their crimes were committed; abrogating
Stanford v. Kentucky, 492 U.S. 361, 109
S.Ct. 2969, 106 L.Ed.2d 306. U.S.C.A.
Const.Amends. 8, 14.
S 551Syllabus *
543 U.S. 553
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
time of the crime. The next year, in Stanford, a 5to4 Court referred to contemporary standards of decency, but concluded
the Eighth and Fourteenth Amendments
did not proscribe the execution of offenders over 15 but under 18 because 22 of 37
death penalty States permitted that penalty for 16yearold offenders, and 25 permitted it for 17yearolds, thereby indicating there was no national consensus. 492
U.S., at 370371, 109 S.Ct. 2969. A pluralSity552 also emphatically reject[ed] the
suggestion that the Court should bring its
own judgment to bear on the acceptability
of the juvenile death penalty. Id., at 377
378, 109 S.Ct. 2969. That same day the
Court held, in Penry v. Lynaugh, 492 U.S.
302, 334, 109 S.Ct. 2934, 106 L.Ed.2d 256,
that the Eighth Amendment did not mandate a categorical exemption from the
death penalty for mentally retarded persons because only two States had enacted
laws banning such executions. Three
Terms ago in Atkins, however, the Court
held that standards of decency had evolved
since Penry and now demonstrated that
the execution of the mentally retarded is
cruel and unusual punishment. The Atkins Court noted that objective indicia of
societys standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions
had become so truly unusual that it was
fair to say that a national consensus has
developed against them. 536 U.S., at 314
315, 122 S.Ct. 2242. The Court also returned to the rule, established in decisions
predating Stanford, that the Constitution
contemplates that the Courts own judgment be brought to bear on the question of
the acceptability of the death penalty. 536
U.S., at 312, 122 S.Ct. 2242. After observing that mental retardation diminishes
personal culpability even if the offender
can distinguish right from wrong, id., at
318, 122 S.Ct. 2242, and that mentally retarded offenders impairments make it less
1185
defensible to impose the death penalty as

retribution for past crimes or as a real
deterrent to future crimes, id., at 319320,
122 S.Ct. 2242, the Court ruled that the
death penalty constitutes an excessive
sanction for the entire category of mentally retarded offenders, and that the Eighth
Amendment places a substantive restriction on the States power to take such an
offenders life, id., at 321, 122 S.Ct. 2242.
Just as the Atkins Court reconsidered the
issue decided in Penry, the Court now
reconsiders the issue decided in Stanford.
Pp. 11901192.
(b) Both objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question, and the Courts own
determination in the exercise of its independent judgment, demonstrate that the
death penalty is a disproportionate punishment for juveniles. Pp. 11921198.
(1) As in Atkins, the objective indicia
of national consensus herethe rejection
of the juvenile death penalty in the majority of States; the infrequency of its use
even where it remains on the books; and
the consistency in the trend toward abolition of the practiceprovide sufficient evidence that today society views juveniles, in
the words Atkins used respecting the mentally retarded, as categorically less culpable than the average criminal, 536 U.S., at
316, 122 S.Ct. 2242. The evidence of such
consensus is similar, and in some respects
parallel, to the evidence in Atkins: 30
States prohibit the juvenile death penalty,
including 12 that have rejected it altogether and 18 that maintain it but, by express
proviSsion553 or judicial interpretation, exclude juveniles from its reach. Moreover,
even in the 20 States without a formal
prohibition, the execution of juveniles is
infrequent. Although, by contrast to Atkins, the rate of change in reducing the
incidence of the juvenile death penalty, or
1186
in taking specific steps to abolish it, has

been less dramatic, the difference between
this case and Atkins in that respect is
counterbalanced by the consistent direction of the change toward abolition.
Indeed, the slower pace here may be explained by the simple fact that the impropriety of executing juveniles between 16
and 18 years old gained wide recognition
earlier than the impropriety of executing
the mentally retarded. Pp. 11921194.
(2) Rejection of the imposition of the
death penalty on juvenile offenders under
18 is required by the Eighth Amendment.
those offenders who commit a narrow
whose extreme culpability makes them
the most deserving of execution. Atkins, supra, at 319, 122 S.Ct. 2242.
Three general differences between juveniles under 18 and adults demonstrate
that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles susceptibility to immature and irresponsible behavior means
their irresponsible conduct is not as morally reprehensible as that of an adult.
Thompson v. Oklahoma, 487 U.S. 815,
835, 108 S.Ct. 2687, 101 L.Ed.2d 702.
Their own vulnerability and comparative
lack of control over their immediate surroundings mean juveniles have a greater
claim than adults to be forgiven for failing
to escape negative influences in their
whole environment. See Stanford, supra,
at 395, 109 S.Ct. 2969. The reality that
juveniles still struggle to define their
identity means it is less supportable to
conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.
The
Thompson plurality recognized the import
of these characteristics with respect to juveniles under 16. 487 U.S., at 833838,
108 S.Ct. 2687. The same reasoning applies to all juvenile offenders under 18.
543 U.S. 553
Once juveniles diminished culpability is

recognized, it is evident that neither of
the two penological justifications for the
death penaltyretribution and deterrence
of capital crimes by prospective offenders,
e.g., Atkins, supra, at 319, 122 S.Ct.
2242provides adequate justification for
imposing that penalty on juveniles. Although the Court cannot deny or overlook
the brutal crimes too many juvenile offenders have committed, it disagrees with
petitioners contention that, given the
Courts own insistence on individualized
consideration in capital sentencing, it is
arbitrary and unnecessary to adopt a categorical rule barring imposition of the
death penalty on an offender under 18.
An unacceptable likelihood exists that the
brutality or cold-blooded nature of any
particular crime would overpower mitigating arguments based on youth as a matter
of course, even where the juvenile offenders S 554objective immaturity, vulnerability,
and lack of true depravity should require
a sentence less severe than death. When
a juvenile commits a heinous crime, the
State can exact forfeiture of some of the
most basic liberties, but the State cannot
extinguish his life and his potential to attain a mature understanding of his own
humanity. While drawing the line at 18 is
subject to the objections always raised
against categorical rules, that is the point
where society draws the line for many
purposes between childhood and adulthood and the age at which the line for
death eligibility ought to rest. Stanford
should be deemed no longer controlling on
this issue. Pp. 11941198.
(c) The overwhelming weight of international opinion against the juvenile death
penalty is not controlling here, but provides respected and significant confirmation for the Courts determination that the
penalty is disproportionate punishment for
offenders under 18. See, e.g., Thompson,
543 U.S. 556
1187
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
supra, at 830831, and n. 31, 108 S.Ct.

2687. The United States is the only country in the world that continues to give
official sanction to the juvenile penalty. It
does not lessen fidelity to the Constitution
or pride in its origins to acknowledge that
the express affirmation of certain fundamental rights by other nations and peoples
underscores the centrality of those same
rights within our own heritage of freedom.
Pp. 11981200.
112 S.W.3d 397, affirmed.
SOUTER, GINSBURG, and BREYER,
JJ., joined. STEVENS, J., filed a
concurring opinion, in which GINSBURG,
J., joined, post, p. 1205. OCONNOR, J.,
filed a dissenting opinion, post, p. 1206.
SCALIA, J., filed a dissenting opinion, in
which REHNQUIST, C.J., and THOMAS,
J., joined, post, p. 1217.
James R. Layton, Jefferson City, MO,

for petitioner.
Seth P. Waxman, Washington, DC, for
respondent.
Jennifer Herndon, Counsel of Record,
St. Louis, MO, Seth P. Waxman, David W.
Ogden, Danielle Spinelli, Wilmer, Cutler,
Pickering, Hale and Dorr, LLP, Washington, DC, for Respondent.
Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State
Solicitor, Stephen D. Hawke, Counsel of
Record, Evan J. Buchheim, Assistant Attorneys General, Jefferson City, MO, for
Petitioner.
2004 WL 903158 (Pet.Brief)
2004 WL 1947812 (Resp.Brief)

S 555This case requires us to address, for
the second time in a decade and a half,
whether it is permissible under the Eighth
and Fourteenth Amendments to the Constitution of the United States to execute a
juvenile offender who was older S 556than 15
but younger than 18 when he committed a
capital crime. In Stanford v. Kentucky,
492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d
306 (1989), a divided Court rejected the
proposition that the Constitution bars capital punishment for juvenile offenders in
this age group. We reconsider the question.
I
At the age of 17, when he was still a
junior in high school, Christopher Simmons, the respondent here, committed
murder. About nine months later, after
he had turned 18, he was tried and sentenced to death. There is little doubt that
Simmons was the instigator of the crime.
Before its commission Simmons said he
wanted to murder someone. In chilling,
callous terms he talked about his plan,
discussing it for the most part with two
friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively.
Simmons proposed to commit burglary and
murder by breaking and entering, tying up
a victim, and throwing the victim off a
bridge. Simmons assured his friends they
could get away with it because they were
minors.
The three met at about 2 a.m. on the
night of the murder, but Tessmer left before the other two set out. (The State
later charged Tessmer with conspiracy,
but dropped the charge in exchange for his
testimony against Simmons.) Simmons
and Benjamin entered the home of the
victim, Shirley Crook, after reaching
through an open window and unlocking the
1188
back door. Simmons turned on a hallway

light. Awakened, Mrs. Crook called out,
Whos there? In response Simmons entered Mrs. Crooks bedroom, where he
recognized her from a previous car accident involving them both. Simmons later
admitted this confirmed his resolve to
murder her.
Using duct tape to cover her eyes and
mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and
drove to a state park. They reinforced the
bindings, covered her head with a towel,
and walked her to a railSroad557 trestle
spanning the Meramec River. There they
tied her hands and feet together with electrical wire, wrapped her whole face in duct
tape and threw her from the bridge,
drowning her in the waters below.
By the afternoon of September 9, Steven
Crook had returned home from an overnight trip, found his bedroom in disarray,
and reported his wife missing. On the
same afternoon fishermen recovered the
victims body from the river. Simmons,
meanwhile, was bragging about the killing,
telling friends he had killed a woman because the bitch seen my face.
The next day, after receiving information of Simmons involvement, police arrested him at his high school and took him
to the police station in Fenton, Missouri.
They read him his Miranda rights. Simmons waived his right to an attorney and
agreed to answer questions. After less
than two hours of interrogation, Simmons
confessed to the murder and agreed to
perform a videotaped reenactment at the
crime scene.
The State charged Simmons with burglary, kidnaping, stealing, and murder in
the first degree. As Simmons was 17 at
the time of the crime, he was outside the
criminal jurisdiction of Missouris juvenile
court
system.
See
Mo.Rev.Stat.
211.021 (2000) and 211.031 (Supp.2003).
543 U.S. 556
He was tried as an adult. At trial the

State introduced Simmons confession and
the videotaped reenactment of the crime,
along with testimony that Simmons discussed the crime in advance and bragged
about it later. The defense called no witnesses in the guilt phase. The jury having
returned a verdict of murder, the trial
proceeded to the penalty phase.
The State sought the death penalty. As
aggravating factors, the State submitted
that the murder was committed for the
purpose of receiving money; was committed for the purpose of avoiding, interfering
with, or preventing lawful arrest of the
defendant; and involved depravity of mind
and was outrageously and wantonly vile,
horrible, and inhuman. S 558The State
called Shirley Crooks husband, daughter,
and two sisters, who presented moving
evidence of the devastation her death had
brought to their lives.
In mitigation Simmons attorneys first
called an officer of the Missouri juvenile
justice system, who testified that Simmons
had no prior convictions and that no previous charges had been filed against him.
Simmons mother, father, two younger half
brothers, a neighbor, and a friend took the
stand to tell the jurors of the close relationships they had formed with Simmons
and to plead for mercy on his behalf. Simmons mother, in particular, testified to the
responsibility Simmons demonstrated in
taking care of his two younger half brothers and of his grandmother and to his
capacity to show love for them.
During closing arguments, both the
prosecutor and defense counsel addressed
Simmons age, which the trial judge had
instructed the jurors they could consider
as a mitigating factor. Defense counsel
reminded the jurors that juveniles of Simmons age cannot drink, serve on juries, or
even see certain movies, because the leg-
543 U.S. 560
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
islatures have wisely decided that individuals of a certain age arent responsible
enough. Defense counsel argued that
Simmons age should make a huge difference to [the jurors] in deciding just exactly
what sort of punishment to make. In
rebuttal, the prosecutor gave the following
response: Age, he says. Think about
age. Seventeen years old. Isnt that
scary? Doesnt that scare you? Mitigating? Quite the contrary I submit. Quite
the contrary.
The jury recommended the death penalty after finding the State had proved each
of the three aggravating factors submitted
to it. Accepting the jurys recommendation, the trial judge imposed the death
penalty.
Simmons obtained new counsel, who
moved in the trial court to set aside the
conviction and sentence. One argument
was that Simmons had received ineffective
assistance at trial. To support this contention, the new counsel called S 559as witnesses
Simmons trial attorney, Simmons friends
and neighbors, and clinical psychologists
who had evaluated him.
Part of the submission was that Simmons was very immature, very impulsive, and very susceptible to being manipulated or influenced. The experts
testified about Simmons background including a difficult home environment and
dramatic changes in behavior, accompanied by poor school performance in adolescence. Simmons was absent from
home for long periods, spending time using alcohol and drugs with other teenagers or young adults. The contention by
Simmons postconviction counsel was that
these matters should have been established in the sentencing proceeding.
The trial court found no constitutional
violation by reason of ineffective assistance
of counsel and denied the motion for postconviction relief. In a consolidated appeal
1189
from Simmons conviction and sentence,

and from the denial of postconviction relief, the Missouri Supreme Court affirmed.
State v. Simmons, 944 S.W.2d 165, 169 (en
banc), cert. denied, 522 U.S. 953, 118 S.Ct.
376, 139 L.Ed.2d 293 (1997). The federal
courts denied Simmons petition for a writ
of habeas corpus. Simmons v. Bowersox,
235 F.3d 1124, 1127(CA8), cert. denied, 534
U.S. 924, 122 S.Ct. 280, 151 L.Ed.2d 206
(2001).
After these proceedings in Simmons
case had run their course, this Court held
that the Eighth and Fourteenth Amendments prohibit the execution of a mentally
retarded person. Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002). Simmons filed a new petition for
state postconviction relief, arguing that the
reasoning of Atkins established that the
Constitution prohibits the execution of a
juvenile who was under 18 when the crime
was committed.
The Missouri Supreme Court agreed.
State ex rel. Simmons v. Roper, 112
S.W.3d 397 (2003) (en banc). It held that
since Stanford,
a national consensus has developed
against the execution of juvenile offenders, as demonstrated by the fact that
eighteen states now bar such executions
for juveSniles,560 that twelve other states
bar executions altogether, that no state
has lowered its age of execution below
18 since Stanford, that five states have
legislatively or by case law raised or
established the minimum age at 18, and
that the imposition of the juvenile death
penalty has become truly unusual over
the last decade. 112 S.W.3d, at 399.
On this reasoning it set aside Simmons
death sentence and resentenced him to
life imprisonment without eligibility for
probation, parole, or release except by act
of the Governor. Id., at 413.
1190
We granted certiorari, 540 U.S. 1160,

124 S.Ct. 1171, 157 L.Ed.2d 1204 (2004),
and now affirm.
II
The Eighth Amendment provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The provision is
applicable to the States through the Fourteenth Amendment. Furman v. Georgia,
408 U.S. 238, 239, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972) (per curiam); Robinson v. California, 370 U.S. 660, 666667,
82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 463, 67 S.Ct. 374, 91 L.Ed. 422 (1947)
(plurality opinion). As the Court explained in Atkins, the Eighth Amendment
guarantees individuals the right not to be
subjected to excessive sanctions. The
right flows from the basic precept of
justice that punishment for crime should
be graduated and proportioned to [the]
offense. 536 U.S., at 311, 122 S.Ct. 2242
(quoting Weems v. United States, 217 U.S.
349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)).
By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.
[1] The prohibition against cruel and
unusual punishments, like other expansive language in the Constitution, must be
interpreted according to its text, by considering history, tradition, and precedent,
and with due regard for its purpose and
function in the constitutional design. To
implement this S 561framework we have established the propriety and affirmed the
necessity of referring to the evolving
standards of decency that mark the progress of a maturing society to determine
which punishments are so disproportionate
as to be cruel and unusual. Trop v.
543 U.S. 560
Dulles, 356 U.S. 86, 100101, 78 S.Ct. 590,

2 L.Ed.2d 630 (1958) (plurality opinion).
In Thompson v. Oklahoma, 487 U.S.
815, 108 S.Ct. 2687, 101 L.Ed.2d 702
(1988), a plurality of the Court determined
that our standards of decency do not permit the execution of any offender under
the age of 16 at the time of the crime. Id.,
at 818838, 108 S.Ct. 2687 (opinion of STEVENS, J., joined by Brennan, Marshall,
and Blackmun, JJ.). The plurality opinion
explained that no death penalty State that
had given express consideration to a minimum age for the death penalty had set the
age lower than 16. Id., at 826829, 108
S.Ct. 2687. The plurality also observed
that [t]he 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 AngloAmerican heritage, and by the leading members
of the Western European community.
Id., at 830, 108 S.Ct. 2687. The opinion
further noted that juries imposed the
death penalty on offenders under 16 with
exceeding rarity; the last execution of an
offender for a crime committed under the
age of 16 had been carried out in 1948, 40
years prior. Id., at 832833, 108 S.Ct.
2687.
Bringing its independent judgment to
bear on the permissibility of the death
penalty for a 15yearold offender, the
Thompson plurality stressed that [t]he
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. Id., at 835, 108 S.Ct.
2687. According to the plurality, the lesser culpability of offenders under 16 made
the death penalty inappropriate as a form
of retribution, while the low likelihood that
543 U.S. 563
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
offenders under 16 engaged in the kind of

cost-benefit analysis that S 562attaches any
weight to the possibility of execution
made the death penalty ineffective as a
means of deterrence. Id., at 836838, 108
S.Ct. 2687. With Justice OCONNOR concurring in the judgment on narrower
grounds, id., at 848859, 108 S.Ct. 2687,
the Court set aside the death sentence that
had been imposed on the 15yearold offender.
The next year, in Stanford v. Kentucky,
492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d
306 (1989), the Court, over a dissenting
opinion joined by four Justices, referred to
contemporary standards of decency in this
country and concluded the Eighth and
Fourteenth Amendments did not proscribe
the execution of juvenile offenders over 15
but under 18. The Court noted that 22 of
the 37 death penalty States permitted the
death penalty for 16yearold offenders,
and, among these 37 States, 25 permitted
it for 17yearold offenders. These numbers, in the Courts view, indicated there
was no national consensus sufficient to
label a particular punishment cruel and
unusual. Id., at 370371, 109 S.Ct. 2969.
A plurality of the Court also emphatically
reject[ed] the suggestion that the Court
should bring its own judgment to bear on
the acceptability of the juvenile death penalty. Id., at 377378, 109 S.Ct. 2969 (opinion of SCALIA, J., joined by REHNQUIST, C.J., and White and KENNEDY,
JJ.); see also id., at 382, 109 S.Ct. 2969
(OCONNOR, J., concurring in part and
concurring in judgment) (criticizing the
pluralitys refusal to judge whether the
nexus between the punishment imposed
and the defendants blameworthiness is
proportional).
The same day the Court decided Stanford, it held that the Eighth Amendment
did not mandate a categorical exemption
from the death penalty for the mentally
1191
retarded. Penry v. Lynaugh, 492 U.S.

302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989). In reaching this conclusion it
stressed that only two States had enacted
laws banning the imposition of the death
penalty on a mentally retarded person convicted of a capital offense. Id., at 334, 109
S.Ct. 2934. According to the Court, the
two state statutes prohibiting execution of
the mentally retarded, even when added to
the 14 States that have rejected capital
punishment completely, S 563[did] not provide sufficient evidence at present of a
national consensus. Ibid.
Three Terms ago the subject was reconsidered in Atkins. We held that standards
of decency have evolved since Penry and
now demonstrate that the execution of the
mentally retarded is cruel and unusual
punishment. The Court noted objective
indicia of societys standards, as expressed
in legislative enactments and state practice
with respect to executions of the mentally
retarded. When Atkins was decided only
a minority of States permitted the practice, and even in those States it was rare.
536 U.S., at 314315, 122 S.Ct. 2242. On
the basis of these indicia the Court determined that executing mentally retarded
offenders has become truly unusual, and
it is fair to say that a national consensus
has developed against it. Id., at 316, 122
S.Ct. 2242.
The inquiry into our societys evolving
standards of decency did not end there.
The Atkins Court neither repeated nor
relied upon the statement in Stanford that
the Courts independent judgment has no
bearing on the acceptability of a particular
punishment under the Eighth Amendment.
Instead we returned to the rule, established in decisions predating Stanford, that
the 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
1192
Amendment. 536 U.S., at 312, 122 S.Ct.

2242 (quoting Coker v. Georgia, 433 U.S.
584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982
(1977) (plurality opinion)). Mental retardation, the Court said, diminishes personal
culpability even if the offender can distinguish right from wrong. 536 U.S., at 318,
122 S.Ct. 2242. The impairments of mentally retarded offenders make it less defensible to impose the death penalty as retribution for past crimes and less likely that
the death penalty will have a real deterrent effect. Id., at 319320, 122 S.Ct.
2242. Based on these considerations and
on the finding of national consensus
against executing the mentally retarded,
the Court ruled that the death penalty
constitutes an excessive sanction for the
entire category of mentally retarded offendSers,564 and that the Eighth Amendment places a substantive restriction on
the States power to take the life of a
mentally retarded offender. Id., at 321,
122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595,
91 L.Ed.2d 335 (1986)).
Just as the Atkins Court reconsidered
the issue decided in Penry, we now reconsider the issue decided in Stanford. The
beginning point is a review of objective
indicia of consensus, as expressed in particular by the enactments of legislatures
that have addressed the question. These
data give us essential instruction. We
then must determine, in the exercise of our
own independent judgment, whether the
death penalty is a disproportionate punishment for juveniles.
III
A
The evidence of national consensus
against the death penalty for juveniles is
similar, and in some respects parallel, to
the evidence Atkins held sufficient to demonstrate a national consensus against the
543 U.S. 563
death penalty for the mentally retarded.

When Atkins was decided, 30 States prohibited the death penalty for the mentally
retarded. This number comprised 12 that
had abandoned the death penalty altogether, and 18 that maintained it but excluded
the mentally retarded from its reach. 536
U.S., at 313315, 122 S.Ct. 2242. By a
similar calculation in this case, 30 States
prohibit the juvenile death penalty, comprising 12 that have rejected the death
penalty altogether and 18 that maintain it
but, by express provision or judicial interpretation, exclude juveniles from its reach.
See Appendix A, infra. Atkins emphasized that even in the 20 States without
formal prohibition, the practice of executing the mentally retarded was infrequent.
Since Penry, only five States had executed
offenders known to have an IQ under 70.
536 U.S., at 316, 122 S.Ct. 2242. In the
present case, too, even in the 20 States
without a formal prohibition on executing
juveniles, the practice is infrequent. Since
Stanford, six States have executed prisoners for crimes committed as juSveniles.565
In the past 10 years, only three have done
so: Oklahoma, Texas, and Virginia. See
V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for
Juvenile Crimes, January 1, 1973December 31, 2004, No. 76, p. 4 (2005), available
at
http://www.law.
onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf
(last updated Jan. 31, 2005) (as visited
Feb. 25, 2005, and available in Clerk of
Courts case file). In December 2003 the
Governor of Kentucky decided to spare the
life of Kevin Stanford, and commuted his
sentence to one of life imprisonment without parole, with the declaration that [w]e
ought not be executing people who, legally,
were children. Lexington Herald Leader, Dec. 9, 2003, p. B3, 2003 WL 65043346.
By this act the Governor ensured Kentucky would not add itself to the list of
543 U.S. 567
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
States that have executed juveniles within

the last 10 years even by the execution of
the very defendant whose death sentence
the Court had upheld in Stanford v. Kentucky.
There is, to be sure, at least one difference between the evidence of consensus in
Atkins and in this case. Impressive in
Atkins was the rate of abolition of the
death penalty for the mentally retarded.
Sixteen States that permitted the execution of the mentally retarded at the time of
Penry had prohibited the practice by the
time we heard Atkins. By contrast, the
rate of change in reducing the incidence of
the juvenile death penalty, or in taking
specific steps to abolish it, has been slower. Five States that allowed the juvenile
death penalty at the time of Stanford have
abandoned it in the intervening 15 years
four through legislative enactments and
one through judicial decision. Streib, supra, at 5, 7; State v. Furman, 122
Wash.2d 440, 858 P.2d 1092 (1993) (en
banc).
Though less dramatic than the change
from Penry to Atkins (telling, to borrow
the word Atkins used to describe this difference, 536 U.S., at 315, n. 18, 122 S.Ct.
2242), we still consider the change from
Stanford to this case to be significant. As
noted in Atkins, with respect to the States
that had abanSdoned566 the death penalty
for the mentally retarded since Penry,
[i]t is not so much the number of these
States that is significant, but the consistency of the direction of change. 536
U.S., at 315, 122 S.Ct. 2242. In particular
we found it significant that, in the wake of
Penry, no State that had already prohibited the execution of the mentally retarded
had passed legislation to reinstate the penalty. 536 U.S., at 315316, 122 S.Ct. 2242.
The number of States that have abandoned capital punishment for juvenile offenders since Stanford is smaller than the
number of States that abandoned capital
1193
punishment for the mentally retarded after Penry; yet we think the same consistency of direction of change has been demonstrated. Since Stanford, no State that
previously prohibited capital punishment
for juveniles has reinstated it. This fact,
coupled with the trend toward abolition of
the juvenile death penalty, carries special
force in light of the general popularity of
anticrime legislation, Atkins, supra, at 315,
122 S.Ct. 2242, and in light of the particular trend in recent years toward cracking
down on juvenile crime in other respects,
see H. Snyder & M. Sickmund, National
Center for Juvenile Justice, Juvenile Offenders and Victims: 1999 National Report 89, 133 (Sept.1999); Scott & Grisso,
The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J.Crim. L. & C. 137, 148 (1997).
Any difference between this case and Atkins with respect to the pace of abolition is
thus counterbalanced by the consistent direction of the change.
The slower pace of abolition of the juvenile death penalty over the past 15 years,
moreover, may have a simple explanation.
When we heard Penry, only two death
penalty States had already prohibited the
execution of the mentally retarded. When
we heard Stanford, by contrast, 12 death
penalty States had already prohibited the
execution of any juvenile under 18, and 15
had prohibited the execution of any juvenile under 17. If anything, this shows that
the impropriety of executing juveniles between 16 and 18 years of age S 567gained
wide recognition earlier than the impropriety of executing the mentally retarded.
In the words of the Missouri Supreme
Court: It would be the ultimate in irony
if the very fact that the inappropriateness
of the death penalty for juveniles was
broadly recognized sooner than it was recognized for the mentally retarded were to
become a reason to continue the execution
1194
of juveniles now that the execution of the

mentally retarded has been barred. 112
S.W.3d, at 408, n. 10.
Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that
any consensus exists against it. Petitioner
supports this position with, in particular,
the observation that when the Senate ratified the International Covenant on Civil
and Political Rights (ICCPR), Dec. 19,
1966, 999 U.N.T.S. 171 (entered into force
Mar. 23, 1976), it did so subject to the
Presidents proposed reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for juveniles.
Brief for Petitioner 27. This reservation
at best provides only faint support for
petitioners argument. First, the reservation was passed in 1992; since then, five
States have abandoned capital punishment
for juveniles. Second, Congress considered the issue when enacting the Federal
Death Penalty Act in 1994, and determined
that the death penalty should not extend
to juveniles. See 18 U.S.C. 3591. The
reservation to Article 6(5) of the ICCPR
provides minimal evidence that there is not
now a national consensus against juvenile
executions.
As in Atkins, the objective indicia of
consensus in this casethe rejection of the
juvenile death penalty in the majority of
States; the infrequency of its use even
where it remains on the books; and the
consistency in the trend toward abolition
of the practiceprovide sufficient evidence
that today our society views juveniles, in
the words Atkins used respecting the mentally retarded, as categorically less culpable than the average criminal. 536 U.S.,
at 316, 122 S.Ct. 2242.
S 568B
A majority of States have rejected the
imposition of the death penalty on juvenile
543 U.S. 567
offenders under 18, and we now hold this

is required by the Eighth Amendment.
[24] Because the death penalty is the
most severe punishment, the Eighth
Amendment applies to it with special force.
Thompson, 487 U.S., at 856, 108 S.Ct. 2687
(OCONNOR, J., concurring in judgment).
those offenders who commit a narrow category of the most serious crimes and
whose extreme culpability makes them
the most deserving of execution. Atkins, supra, at 319, 122 S.Ct. 2242. This
principle is implemented throughout the
capital sentencing process. States must
give narrow and precise definition to the
aggravating factors that can result in a
capital sentence. Godfrey v. Georgia, 446
U.S. 420, 428429, 100 S.Ct. 1759, 64
L.Ed.2d 398 (1980) (plurality opinion). In
any capital case a defendant has wide latitude to raise as a mitigating factor any
aspect of [his or her] character or record
and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct.
2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104,
110112, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982); see also Johnson v. Texas, 509
U.S. 350, 359362, 113 S.Ct. 2658, 125
L.Ed.2d 290 (1993) (summarizing the
Courts jurisprudence after Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972) (per curiam), with respect to a sentencers consideration of aggravating and mitigating factors). There
are a number of crimes that beyond question are severe in absolute terms, yet the
death penalty may not be imposed for
their commission. Coker v. Georgia, 433
U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982
(1977) (rape of an adult woman); Enmund
v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982) (felony murder where
543 U.S. 570
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
defendant did not kill, attempt to kill, or

intend to kill). The death penalty may not
be imposed on certain classes of offenders,
such as juveniles under 16, the insane, and
the mentally retarded, no matter how heinous the crime. Thompson v. Oklahoma,
supra; Ford v. Wainwright, 477 U.S. 399,
106 S.Ct. 2595, 91 L.Ed.2d 335 (1986);
Atkins, supra. These rules vindicate the
underlying princiSple569 that the death penalty is reserved for a narrow category of
crimes and offenders.
[5] Three general differences between
juveniles under 18 and adults demonstrate
that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as
the scientific and sociological studies respondent and his amici cite tend to confirm, [a] lack of maturity and an underdeveloped sense of responsibility are found in
youth more often than in adults and are
more understandable among the young.
These qualities often result in impetuous
and ill-considered actions and decisions.
Johnson, supra, at 367, 113 S.Ct. 2658;
see also Eddings, supra, at 115116, 102
S.Ct. 869 (Even the normal 16yearold
customarily lacks the maturity of an
adult). It has been noted that adolescents are overrepresented statistically in
virtually every category of reckless behavior. Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12
Developmental Rev. 339 (1992). In recognition of the comparative immaturity and
irresponsibility of juveniles, almost every
State prohibits those under 18 years of age
from voting, serving on juries, or marrying
without parental consent. See Appendixes
BD, infra.
The second area of difference is that
juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Eddings,
supra, at 115, 102 S.Ct. 869 ([Y]outh is
1195
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). This is explained in part by the prevailing circumstance that juveniles have less control, or
less experience with control, over their
own environment. See Steinberg & Scott,
Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished
Responsibility, and the Juvenile Death
Penalty, 58 Am. Psychologist 1009, 1014
(2003) (hereinafter Steinberg & Scott)
([A]s legal minors, [juveniles] lack the
freedom that adults have to extricate
themselves from a criminogenic setting).
S 570The third broad difference is that the
character of a juvenile is not as well
formed as that of an adult. The personality traits of juveniles are more transitory,
less fixed. See generally E. Erikson,
Identity: Youth and Crisis (1968).
These differences render suspect any
conclusion that a juvenile falls among the
worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct
is not as morally reprehensible as that of
an adult. Thompson, supra, at 835, 108
S.Ct. 2687 (plurality opinion). Their own
vulnerability and comparative lack of control over their immediate surroundings
mean juveniles have a greater claim than
adults to be forgiven for failing to escape
negative influences in their whole environment. See Stanford, 492 U.S., at 395, 109
S.Ct. 2969 (Brennan, J., dissenting). The
reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of
irretrievably depraved character. From a
moral standpoint it would be misguided to
equate the failings of a minor with those of
an adult, for a greater possibility exists
that a minors character deficiencies will
1196
be reformed. Indeed, [t]he relevance of

youth as a mitigating factor derives from
the fact that the signature qualities of
youth are transient; as individuals mature,
the impetuousness and recklessness that
may dominate in younger years can subside. Johnson, supra, at 368, 113 S.Ct.
2658; see also Steinberg & Scott 1014
(For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled.
Only a relatively small proportion of adolescents who experiment in risky or illegal
activities develop entrenched patterns of
problem behavior that persist into adulthood).
In Thompson, a plurality of the Court
recognized the import of these characteristics with respect to juveniles under 16, and
relied on them to hold that the Eighth
Amendment prohibited the imposition of
the death penalty on juveniles S 571below
that age. 487 U.S., at 833838, 108 S.Ct.
2687. We conclude the same reasoning
applies to all juvenile offenders under 18.
Once the diminished culpability of juveniles is recognized, it is evident that the
penological justifications for the death penalty apply to them with lesser force than to
adults. We have held there are two distinct social purposes served by the death
penalty: retribution and deterrence of
capital crimes by prospective offenders.
Atkins, 536 U.S., at 319, 122 S.Ct. 2242
(quoting Gregg v. Georgia, 428 U.S. 153,
183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.)). As for retribution, we remarked in Atkins that [i]f the culpability
of the average murderer is insufficient to
justify the most extreme sanction available
to the State, the lesser culpability of the
mentally retarded offender surely does not
merit that form of retribution. 536 U.S.,
at 319, 122 S.Ct. 2242. The same conclusions follow from the lesser culpability of
543 U.S. 570
the juvenile offender. Whether viewed as

an attempt to express the communitys
moral outrage or as an attempt to right
the balance for the wrong to the victim,
the case for retribution is not as strong
with a minor as with an adult. Retribution
is not proportional if the laws most severe
penalty is imposed on one whose culpability or blameworthiness is diminished, to a
substantial degree, by reason of youth and
immaturity.
As for deterrence, it is unclear whether
the death penalty has a significant or even
measurable deterrent effect on juveniles,
as counsel for petitioner acknowledged at
oral argument. Tr. of Oral Arg. 48. In
general we leave to legislatures the assessment of the efficacy of various criminal
penalty schemes, see Harmelin v. Michigan, 501 U.S. 957, 998999, 111 S.Ct. 2680,
115 L.Ed.2d 836 (1991) (KENNEDY, J.,
concurring in part and concurring in judgment). Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that
render juveniles less culpable than adults
suggest as well that juveniles will be less
susceptible to deterrence. In particular,
as the plurality observed in S 572Thompson,
[t]he 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. 487 U.S., at 837, 108 S.Ct.
2687. To the extent the juvenile death
penalty might have residual deterrent effect, it is worth noting that the punishment
of life imprisonment without the possibility
of parole is itself a severe sanction, in
particular for a young person.
In concluding that neither retribution
nor deterrence provides adequate justification for imposing the death penalty on
juvenile offenders, we cannot deny or overlook the brutal crimes too many juvenile
offenders have committed. See Brief for
543 U.S. 574
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
Alabama et al. as Amici Curiae. Certainly it can be argued, although we by no

means concede the point, that a rare case
might arise in which a juvenile offender
has sufficient psychological maturity, and
at the same time demonstrates sufficient
depravity, to merit a sentence of death.
Indeed, this possibility is the linchpin of
one contention pressed by petitioner and
his amici. They assert that even assuming the truth of the observations we have
made about juveniles diminished culpability in general, jurors nonetheless should be
allowed to consider mitigating arguments
related to youth on a case-by-case basis,
and in some cases to impose the death
penalty if justified. A central feature of
death penalty sentencing is a particular
assessment of the circumstances of the
crime and the characteristics of the offender. The system is designed to consider
both aggravating and mitigating circumstances, including youth, in every case.
Given this Courts own insistence on individualized consideration, petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule barring
imposition of the death penalty on any
offender under 18 years of age.
We disagree. The differences between
juvenile and adult offenders are too
marked and well understood to risk allowSing573 a youthful person to receive the
death penalty despite insufficient culpability. An unacceptable likelihood exists that
the brutality or cold-blooded nature of any
particular crime would overpower mitigating arguments based on youth as a matter
of course, even where the juvenile offenders objective immaturity, vulnerability,
and lack of true depravity should require a
sentence less severe than death. In some
cases a defendants youth may even be
counted against him. In this very case, as
we noted above, the prosecutor argued
Simmons youth was aggravating rather
than mitigating.
Supra, at 11881189.
1197
While this sort of overreaching could be

corrected by a particular rule to ensure
that the mitigating force of youth is not
overlooked, that would not address our
larger concerns.
It is difficult even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate
yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott
10141016. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under
18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and
contempt for the feelings, rights, and suffering of others. American Psychiatric
Association, Diagnostic and Statistical
Manual of Mental Disorders 701706 (4th
ed. text rev.2000); see also Steinberg &
Scott 1015. If trained psychiatrists with
the advantage of clinical testing and observation refrain, despite diagnostic expertise,
from assessing any juvenile under 18 as
having antisocial personality disorder, we
conclude that States should refrain from
asking jurors to issue a far graver condemnationthat a juvenile offender merits
the death penalty. When a juvenile offender commits a heinous crime, the State
can exact forfeiture of some S 574of the most
basic liberties, but the State cannot extinguish his life and his potential to attain a
mature understanding of his own humanity.
Drawing the line at 18 years of age is
subject, of course, to the objections always
raised against categorical rules. The qualities that distinguish juveniles from adults
do not disappear when an individual turns
18. By the same token, some under 18
have already attained a level of maturity
some adults will never reach. For the
1198
reasons we have discussed, however, a line

must be drawn. The plurality opinion in
Thompson drew the line at 16. In the
intervening years the Thompson pluralitys conclusion that offenders under 16
may not be executed has not been challenged. The logic of Thompson extends to
those who are under 18. The age of 18 is
the point where society draws the line for
adulthood. It is, we conclude, the age at
which the line for death eligibility ought to
rest.
These considerations mean Stanford v.
Kentucky should be deemed no longer controlling on this issue. To the extent Stanford was based on review of the objective
indicia of consensus that obtained in 1989,
492 U.S., at 370371, 109 S.Ct. 2969, it
suffices to note that those indicia have
changed. Supra, at 11921194. It should
be observed, furthermore, that the Stanford Court should have considered those
States that had abandoned the death penalty altogether as part of the consensus
against the juvenile death penalty, 492
U.S., at 370, n. 2, 109 S.Ct. 2969; a States
decision to bar the death penalty altogether of necessity demonstrates a judgment
that the death penalty is inappropriate for
all offenders, including juveniles. Last, to
the extent Stanford was based on a rejection of the idea that this Court is required
to bring its independent judgment to bear
on the proportionality of the death penalty
for a particular class of crimes or offenders, id., at 377378, 109 S.Ct. 2969 (plurality opinion), it suffices to note that this
rejection was inconsistent with prior
Eighth Amendment decisions, Thompson,
487 U.S., at 833S838,575 108 S.Ct. 2687 (plurality opinion); Enmund, 458 U.S., at 797,
102 S.Ct. 3368; Coker, 433 U.S., at 597, 97
S.Ct. 2861 (plurality opinion). It is also
inconsistent with the premises of our recent decision in Atkins. 536 U.S., at 312
313, 317321, 122 S.Ct. 2242.
543 U.S. 574
In holding that the death penalty cannot

be imposed upon juvenile offenders, we
take into account the circumstance that
some States have relied on Stanford in
seeking the death penalty against juvenile
offenders. This consideration, however,
does not outweigh our conclusion that
Stanford should no longer control in those
few pending cases or in those yet to arise.
IV
Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the
stark reality that the United States is the
only country in the world that continues to
give official sanction to the juvenile death
penalty. This reality does not become
controlling, for the task of interpreting the
Eighth Amendment remains our responsibility. Yet at least from the time of the
Courts decision in Trop, the Court has
referred to the laws of other countries and
to international authorities as instructive
for its interpretation of the Eighth Amendments prohibition of cruel and unusual
punishments. 356 U.S., at 102103, 78
S.Ct. 590 (plurality opinion) (The civilized
nations of the world are in virtual unanimity that statelessness is not to be imposed
as punishment for crime); see also Atkins, supra, at 317, n. 21, 122 S.Ct. 2242
(recognizing that within the world community, the imposition of the death penalty
for crimes committed by mentally retarded
offenders is overwhelmingly disapproved);
Thompson, supra, at 830831, and n. 31,
108 S.Ct. 2687 (plurality opinion) (noting
the abolition of the juvenile death penalty
by other nations that share our Anglo
American heritage, and by the leading
members of the Western European community, and observing that [w]e have
previously recognized the relevance of the
views of the international commuSnity576 in
determining whether a punishment is cruel
543 U.S. 577
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
and unusual); Enmund, supra, at 796

797, n. 22, 102 S.Ct. 3368 (observing that
the doctrine of felony murder has been
abolished in England and India, severely
restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe); Coker, supra, at 596, n. 10, 97 S.Ct. 2861 (plurality
opinion) (It is TTT not irrelevant here that
out of 60 major nations in the world surveyed in 1965, only 3 retained the death
penalty for rape where death did not ensue).
As respondent and a number of amici
emphasize, Article 37 of the United Nations Convention on the Rights of the
Child, which every country in the world
has ratified save for the United States and
Somalia, contains an express prohibition
on capital punishment for crimes committed by juveniles under 18. United Nations
Convention on the Rights of the Child,
Art. 37, Nov. 20, 1989, 1577 U.N.T.S. 3, 28
I.L.M. 1448, 14681470 (entered into force
Sept. 2, 1990); Brief for Respondent 48;
Brief for European Union et al. as Amici
Curiae 1213; Brief for President James
Earl Carter, Jr., et al. as Amici Curiae 9;
Brief for Former U.S. Diplomats Morton
Abramowitz et al. as Amici Curiae 7;
Brief for Human Rights Committee of the
Bar of England and Wales et al. as Amici
Curiae 1314. No ratifying country has
entered a reservation to the provision prohibiting the execution of juvenile offenders.
Parallel prohibitions are contained in other
significant international covenants. See
ICCPR, Art. 6(5), 999 U.N.T.S., at 175
(prohibiting capital punishment for anyone
under 18 at the time of offense) (signed
and ratified by the United States subject
to a reservation regarding Article 6(5), as
noted, supra, at 1194); American Convention on Human Rights: Pact of San Jose,
Costa Rica, Art. 4(5), Nov. 22, 1969, 1144
U.N.T.S. 146 (entered into force July 19,
1978) (same); African Charter on the
1199
Rights and Welfare of the Child, Art. 5(3),

OAU Doc. CAB/LEG/ 24.9/49 (1990) (entered into force Nov. 29, 1999) (same).
S 577Respondent and his amici have submitted, and petitioner does not contest,
that only seven countries other than the
United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi
Arabia, Yemen, Nigeria, the Democratic
Republic of Congo, and China. Since then
each of these countries has either abolished capital punishment for juveniles or
made public disavowal of the practice.
Brief for Respondent 4950. In sum, it is
fair to say that the United States now
stands alone in a world that has turned its
face against the juvenile death penalty.
Though the international covenants prohibiting the juvenile death penalty are of
more recent date, it is instructive to note
that the United Kingdom abolished the
juvenile death penalty before these covenants came into being. The United Kingdoms experience bears particular relevance here in light of the historic ties
between our countries and in light of the
Eighth Amendments own origins. The
Amendment was modeled on a parallel
provision in the English Declaration of
Rights of 1689, which provided: [E]xcessive Bail ought not to be required nor
excessive Fines imposed; nor cruel and
unusual Punishments inflicted. 1 W. &
M., ch. 2, 10, in 3 Eng. Stat. at Large
441 (1770); see also Trop, supra, at 100, 78
S.Ct. 590 (plurality opinion). As of now,
the United Kingdom has abolished the
death penalty in its entirety; but, decades
before it took this step, it recognized the
disproportionate nature of the juvenile
death penalty; and it abolished that penalty as a separate matter. In 1930 an official committee recommended that the minimum age for execution be raised to 21.
House of Commons Report from the Select
Committee on Capital Punishment (1930),
1200
193, p. 44. Parliament then enacted the

Children and Young Persons Act of 1933,
23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the
sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 & 12 Geo.
6, ch. 58, prohibiting the execution of any
person under 18 at the time of the offense.
In the 56 years that have passed S 578since
the United Kingdom abolished the juvenile
death penalty, the weight of authority
against it there, and in the international
community, has become well established.
It is proper that we acknowledge the
overwhelming weight of international opinion against the juvenile death penalty,
resting in large part on the understanding
that the instability and emotional imbalance of young people may often be a
factor in the crime. See Brief for Human
Rights Committee of the Bar of England
and Wales et al. as Amici Curiae 1011.
The opinion of the world community, while
not controlling our outcome, does provide
respected and significant confirmation for
our own conclusions.
Over time, from one generation to the
next, the Constitution has come to earn
the high respect and even, as Madison
dared to hope, the veneration of the American people. See The Federalist No. 49, p.
314 (C. Rossiter ed.1961). The document
543 U.S. 577
sets forth, and rests upon, innovative principles original to the American experience,
such as federalism; a proven balance in
political mechanisms through separation of
powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and
guarantees are central to the American
experience and remain essential to our
present-day self-definition and national
identity. Not the least of the reasons we
honor the Constitution, then, is because we
know it to be our own. It does not lessen
our fidelity to the Constitution or our pride
in its origins to acknowledge that the express affirmation of certain fundamental
rights by other nations and peoples simply
underscores the centrality of those same
rights within our own heritage of freedom.
*
The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of
18 when their crimes were committed.
The judgment S 579of the Missouri Supreme
Court setting aside the sentence of death
imposed upon Christopher Simmons is affirmed.
It is so ordered.
APPENDIX A TO OPINION OF THE COURT

I.
Alabama
Arizona
Arkansas
Delaware
Florida
Georgia
Idaho
Kentucky
Louisiana
Mississippi
Missouri
Nevada
STATES THAT PERMIT THE IMPOSITION OF THE

DEATH PENALTY ON JUVENILES
Ala.Code 13A62(c) (West 2004) (no express minimum age)
Ariz.Rev.Stat. Ann. 13703(A) (West Supp.2004) (same)
Ark.Code Ann. 54615 (Michie 1997) (same)
Del.Code Ann., Tit. 11 (Lexis 1995) (same)
Fla. Stat. 985.225(1) (2003) (same)
Ga.Code Ann. 1793 (Lexis 2004) (same)
Idaho Code 184004 (Michie 2004) (same)
Ky.Rev.Stat. Ann. 640.040(1) (Lexis 1999) (minimum age of 16)
La. Stat. Ann. 14:30(C) (West Supp.2005) (no express minimum age)
Miss.Code Ann. 97321 (Lexis 2000) (same)
Mo.Rev.Stat. Ann. 565.020 (2000) (minimum age of 16)
Nev.Rev.Stat. 176.025 (2003) (minimum age of 16)
ROPER v. SIMMONS
543 U.S. 581
Cite as 125 S.Ct. 1183 (2005)
1201
APPENDIX A TO OPINION OF THE COURTContinued

New Hampshire
North Carolina
Oklahoma
Pennsylvania
South Carolina
Texas
Utah
S 580Virginia
N.H.Rev.Stat. Ann. 630:1(V) (West 1996) (minimum age of 17)

N.C. Gen.Stat. 1417 (Lexis 2003) (minimum age of 17, except that those
under 17 who commit murder while serving a prison sentence for a
previous murder may receive the death penalty)
Okla. Stat. Ann., Tit. 21, 701.10 (West 2002) (no express minimum age)
18 Pa. Cons.Stat. 1102 (2002) (same)
S.C.Code Ann. 16320 (West Supp.2004 and main ed.) (same)
Tex. Penal Code Ann. 8.07(c) (West Supp.20042005) (minimum age of
17)
Utah Code Ann. 763206(1) (Lexis 2003) (no express minimum age)
Va.Code Ann. 18.210(a) (Lexis 2004) (minimum age of 16)
II.
STATES THAT RETAIN THE DEATH PENALTY,

BUT SET THE MINIMUM AGE AT 18
California
Colorado
Connecticut
Illinois
Indiana
Kansas
Maryland
Montana
Nebraska
New Jersey
New Mexico
New York
Ohio
Oregon
South Dakota
Tennessee
Washington
Cal.Penal Code Ann. 190.5 (West 1999)

Colo.Rev.Stat. 181.4102(1)(a) (Lexis 2004)
Conn. Gen.Stat. 53a46a(h) (2005)
Ill. Comp. Stat., ch. 720, 5/91(b) (West Supp.2003)
Ind.Code Ann. 355023 (2004)
Kan. Stat. Ann. 214622 (1995)
Md.Crim. Law Code Ann. 2202(b)(2)(i) (Lexis 2002)
Mont.Code Ann. 455102 (2003)
Neb.Rev.Stat. 28105.01(1) (Supp.2004)
N.J. Stat. Ann. 2C:113(g) (West Supp.2003)
N.M. Stat. Ann. 311814(A) (2000)
N.Y. Penal Law Ann. 125.27 (West 2004)
Ohio Rev.Code Ann. 2929.02(A) (Lexis 2003)
Ore.Rev.Stat. 161.620, 137.707(2) (2003)
S.D. Codified Laws 23A27A42 (West 2004)
Tenn.Code Ann. 371134(a)(1) (1996)
Minimum age of 18 established by judicial decision. State v. Furman, 122
Wash.2d 440, 858 P.2d 1092 (1993)
Wyoming
Wyo. Stat. 62101(b) (Lexis Supp.2004)
* * *
During the past year, decisions by the highest courts of Kansas and New York invalidated
provisions in those States death penalty statutes. State v. Marsh, 278 Kan. 520, 102 P.3d 445
(2004) (invalidating provision that required imposition of the death penalty if aggravating and
mitigating circumstances were found to be in equal balance); People v. LaValle, 3 N.Y.3d 88,
783 N.Y.S.2d 485, 817 N.E.2d 341 (2004) (invalidating mandatory requirement to instruct the
jury that, in the case of jury deadlock as to the appropriate sentence in a capital case, the
defendant would receive a sentence of life imprisonment with parole eligibility after serving a
minimum of 20 to 25 years). Due to these decisions, it would appear that in these States the
death penalty remains on the books, but that as a practical matter it might not be imposed on
anyone until there is a change of course in these decisions, or until the respective state
legislatures remedy the problems the courts have identified. Marsh, supra, at 524526, 544
546, 102 P.3d, at 452, 464; LaValle, supra, at 99, 783 N.Y.S.2d 485, 817 N.E.2d, at 344.
S 581III.
Alaska
Hawaii
Iowa
Maine
Massachusetts
Michigan
STATES WITHOUT THE DEATH PENALTY
1202
543 U.S. 581
APPENDIX A TO OPINION OF THE COURTContinued

Minnesota
North Dakota
Rhode Island
Vermont
West Virginia
Wisconsin
APPENDIX B TO OPINION OF THE COURT

STATE STATUTES ESTABLISHING A MINIMUM AGE TO VOTE
STATE
Alabama
Alaska
AGE
18
18
Arizona
18
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
18
18
18
18
18
18
18
18
Hawaii
Idaho
Illinois
18
18
Indiana
Iowa
S 582Kansas
Kentucky
Louisiana
18
18
18
18
18
Maine
18
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
18
18
18
18
18
18
18
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
18
18
18
18
18
18
18
18
18
Oklahoma
Oregon
Pennsylvania
18
18
18
STATUTE
Ala. Const., Amdt. No. 579
Alaska Const., Art. V, 1; Alaska Stat. 1505.010 (Lexis
2004)
Ariz. Const., Art. VII, 2; Ariz.Rev.Stat. 16101 (West
2001)
Ark.Code Ann. 925101 (Lexis 2002)
Cal. Const., Art. 2, 2
Colo.Rev.Stat. 12101 (Lexis 2004)
Conn. Const., Art. 6, 1; Conn. Gen.Stat. 912 (2005)
Del.Code Ann., Tit. 15, 1701 (Michie Supp.2004)
D.C.Code 11001.02(2)(B) (West Supp.2004)
Fla. Stat. ch. 97.041 (2003)
Ga. Const., Art. 2, 1, 2; Ga.Code Ann. 212216 (Lexis
2003)
Haw. Const., Art. II, 1; Haw.Rev.Stat. 1112 (1995)
Idaho Code 34402 (Michie 2001)
Ill. Const., Art. III, 1; Ill. Comp. Stat., ch. 10, 5/31
(West 2002)
Ind.Code Ann. 37131 (2004)
Iowa Code 48A.5 (2003)
Kan. Const., Art. 5, 1
Ky. Const. 145
La. Const., Art. I, 10; La.Rev.Stat. Ann. 18:101 (West
2004)
Me. Const., Art. II, 1 (West Supp.2004); Me.Rev.Stat.
Ann., Tit. 21A, 111, 111A (West 1993 and Supp.2004)
Md. Elec. Law Code Ann. 3102 (Lexis 2002)
Mass. Gen. Laws Ann., ch. 51, 1 (West Supp.2005)
Mich. Comp. Laws Ann. 168.492 (West 1989)
Minn.Stat. 201.014(1)(a) (2004)
Miss. Const., Art. 12, 241
Mo. Const., Art. VIII, 2
Mont. Const., Art. IV, 2; Mont.Code Ann. 131111
(2003)
Neb. Const., Art. VI, 1; Neb.Rev.Stat. 32110 (2004)
Nev.Rev.Stat. 293.485 (2003)
N.H. Const., Pt. 1, Art. 11
N.J. Const., Art. II, 1, 3
[no provision other than U.S. Const., Amdt. XXVI]
N.Y. Elec. Law Ann. 5102 (West 1998)
N.C. Gen.Stat. Ann. 16355 (Lexis 2003)
N.D. Const., Art. II, 1
Ohio Const., Art. V, 1; Ohio Rev.Code Ann. 3503.01
(Anderson 1996)
Okla. Const., Art. III, 1
Ore. Const., Art. II, 2
25 Pa. Cons.Stat. Ann. 2811 (1994)
ROPER v. SIMMONS
543 U.S. 584
Cite as 125 S.Ct. 1183 (2005)
1203
APPENDIX B TO OPINION OF THE COURTContinued

Rhode Island
South Carolina
South Dakota
18
18
18
R.I. Gen. Laws 1713 (Lexis 2003)

S.C.Code Ann. 75610 (West Supp.2004)
S.D. Const., Art. VII, 2; S.D. Codified Laws Ann. 123
1 (West 2004)
Tennessee
18
Tenn.Code Ann. 22102 (2003)
Texas
18
Tex. Elec.Code Ann. 11.002 (West 2003)
Utah
18
Utah Const., Art. IV, 2; Utah Code Ann. 20A2101
(Lexis 2003)
Vermont
18
Vt. Stat. Ann., Tit. 17, 2121 (Lexis 2002)
18
Va. Const., Art. II, 1
S 583Virginia
Washington
18
Wash. Const., Art. VI, 1
West Virginia
18
W. Va.Code 313 (Lexis 2002)
Wisconsin
18
Wis. Const., Art. III, 1; Wis. Stat. 6.02 (West 2004)
Wyoming
18
Wyo. Stat. Ann. 221102, 223102 (Lexis Supp.2004)
* * *
The TwentySixth Amendment to the Constitution of the United States provides that [t]he
right of citizens of the United States, who are eighteen years of age or older, to vote shall not
be denied or abridged by the United States or by any State on account of age.
APPENDIX C TO OPINION OF THE COURT

STATE STATUTES ESTABLISHING A MINIMUM AGE FOR JURY SERVICE
STATE
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
AGE
19
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
S 584Kentucky
Louisiana
Maine
Maryland
Massachusetts
18
18
18
18
18
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
18
18
21
21
18
19
18
New Hampshire
18
STATUTE
Ala.Code 121660(a)(1) (West 1995)
Alaska Stat. 09.20.010(a)(3) (Lexis 2004)
Ariz.Rev.Stat. 21301(D) (West 2002)
Ark.Code Ann. 1631101, 1632302 (Lexis Supp.2003)
Cal. Civ. Proc. 203(a)(2) (West Supp.2005)
Colo.Rev.Stat. 1371105(2)(a) (Lexis 2004)
Conn. Gen.Stat. 51217(a) (2005)
Del.Code Ann., Tit. 10, 4509(b)(2) (Michie 1999)
D.C.Code 111906(b)(1)(C) (West 2001)
Fla. Stat. 40.01 (2003)
Ga.Code Ann. 151260, 1512163 (Lexis 2001)
Haw.Rev.Stat. 6124(a)(1) (Supp.2004)
Idaho Code 2209(2)(a) (Michie 2004)
Ill. Comp. Stat., ch. 705, 305/2 (West 2002)
Ind.Code 332848 (2004)
Iowa Code 607A.4(1)(a) (2003)
Kan. Stat. Ann. 43156 (2000) (jurors must be qualified to
be electors); Kan. Const., Art. 5, 1 (person must be 18 to
be qualified elector)
Ky.Rev.Stat. Ann. 29A.080(2)(a) (Lexis Supp.2004)
La.Code Crim. Proc. Ann., Art. 401(A)(2) (West 2003)
Me.Rev.Stat. Ann., Tit. 14, 1211 (West 1980)
Md. Cts. & Jud. Proc.Code Ann. 8104 (Lexis 2002)
Mass. Gen. Laws Ann., ch. 234, 1 (West 2000) (jurors must
be qualified to vote); ch. 51, 1 (West Supp.2005) (person
must be 18 to vote)
Mich. Comp. Laws Ann. 600.1307a(1)(a) (West Supp.2004)
Minn. Dist. Ct. Rule 808(b)(2) (2004)
Miss.Code Ann. 1351 (Lexis 2002)
Mo.Rev.Stat. 494.425(1) (2000)
Mont.Code Ann. 315301 (2003)
Neb.Rev.Stat. 251601 (Supp.2004)
Nev.Rev.Stat. 6.010 (2003) (juror must be qualified
elector); 293.485 (person must be 18 to vote)
N.H.Rev.Stat. Ann. 500A:7a(I) (Lexis Supp.2004)
1204
543 U.S. 584
APPENDIX C TO OPINION OF THE COURTContinued

New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
18
18
18
18
18
18
18
18
18
18
18
18
18
18
S 585Virginia
Washington
West Virginia
Wisconsin
Wyoming
18
18
18
18
18
N.J. Stat. Ann. 2B:201(a) (West 2004 Pamphlet)

N.M. Stat. Ann. 3851 (1998)
N.Y. Jud. Law Ann. 510(2) (West 2003)
N.D. Cent.Code 2709.108(2)(b) (Lexis Supp.2003)
Ohio Rev.Code Ann. 2313.42 (Anderson 2001)
Okla. Stat. Ann., Tit. 38, 28 (West Supp.2005)
R.I. Gen. Laws 991.1(a)(2) (Lexis Supp.2005)
S.D. Codified Laws 161310 (2004)
Tenn.Code Ann. 221101 (1994)
Tex. Govt.Code Ann. 62.102(1) (West 1998)
Utah Code Ann. 78467(1)(b) (Lexis 2002)
Vt. Stat. Ann., Tit. 4, 962(a)(1) (Lexis 1999) (jurors must
have attained age of majority); Tit. 1, 173 (Lexis 2003)
(age of majority is 18)
Va.Code Ann. 8.01337 (Lexis 2000)
Wash. Rev. Code Ann. 2.36.070 (West 2004)
W. Va.Code 5218(b)(1) (Lexis 2000)
Wis. Stat. 756.02 (West 2001)
Wyo. Stat. Ann. 111101 (Lexis 2003) (jurors must be
adults); 141101 (person becomes an adult at 18)
APPENDIX D TO OPINION OF THE COURT

STATE STATUTES ESTABLISHING A MINIMUM AGE FOR MARRIAGE
WITHOUT PARENTAL OR JUDICIAL CONSENT
STATE
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
AGE
18
18
18
18
18
18
18
18
18
18
16
Hawaii
Idaho
Illinois
Indiana
18
18
18
18
Iowa
Kansas
Kentucky
Louisiana
18
18
18
18
Maine
18
Maryland
16
STATUTE
Ala.Code 3015 (West Supp.2004)
Alaska Stat. 25.05.011, 25.05.171 (Lexis 2004)
Ariz.Rev.Stat. Ann. 25102 (West Supp.2004)
Ark.Code Ann. 911102, 911208 (Lexis 2002)
Cal. Fam.Code Ann. 301 (West 2004)
Colo.Rev.Stat. Ann. 142106 (Lexis 2004)
Conn. Gen.Stat. 46b30 (2005)
Del.Code Ann., Tit. 13, 123 (Lexis 1999)
D.C.Code 46411 (West 2001)
Fla. Stat. 741.04, 741.0405 (2003)
Ga.Code Ann. 1932, 19337 (Lexis 2004) (those under
18 must obtain parental consent unless female applicant is
pregnant or both applicants are parents of a living child, in
which case minimum age to marry without consent is 16)
Haw.Rev.Stat. 5722 (1993)
Idaho Code 32202 (Michie 1996)
Ill. Comp. Stat., ch. 750, 5/203 (West 2002)
Ind.Code Ann. 311114, 311115, 311121, 3111
23 (2004)
Iowa Code 595.2 (2003)
Kan. Stat. Ann. 23106 (Supp.2003)
Ky.Rev.Stat. Ann. 402.020, 402.210 (Lexis 1999)
La. Childrens Code Ann., Arts. 1545, 1547 (West 2004)
(minors may not marry without S 586consent); La. Civ.Code
Ann., Art. 29 (West 1999) (age of majority is 18)
Me.Rev.Stat. Ann., Tit. 19A, 652 (West 1998 and Supp.
2004)
Md. Fam. Law Code Ann. 2301 (Lexis 2004) (those
under 18 must obtain parental consent unless female appli-
ROPER v. SIMMONS
543 U.S. 587
Cite as 125 S.Ct. 1183 (2005)
1205
APPENDIX D TO OPINION OF THE COURTContinued
Massachusetts
Michigan
Minnesota
Mississippi
18
18
18
15/17
Missouri
Montana
Nebraska
18
18
19
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
S 587Virginia
Washington
West Virginia
Wisconsin
Wyoming
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
18
cant can present proof of pregnancy or a child, in which

case minimum age to marry without consent is 16)
Mass. Gen. Laws Ann., ch. 207, 7, 24, 25 (West 1998)
Mich. Comp. Laws Ann. 551.103 (West 2005)
Minn.Stat. 517.02 (2004)
Miss.Code Ann. 9315 (Lexis 2004) (female applicants
must be 15; male applicants must be 17)
Mo.Rev.Stat. 451.090 (2000)
Mont.Code Ann. 401202, 401213 (2003)
Neb.Rev.Stat. 42105 (2004) (minors must have parental
consent to marry); 432101 (defining minor as a person
under 19)
Nev.Rev.Stat. 122.020 (2003)
N.H.Rev.Stat. Ann. 457:5 (West 1992)
N.J. Stat. Ann. 37:16 (West 2002)
N.M. Stat. Ann. 4016 (1999)
N.Y. Dom. Rel. Law Ann. 15 (West Supp.2005)
N.D. Cent.Code 140302 (Lexis 2004)
Ohio Rev.Code Ann. 3101.01 (2003)
Okla. Stat. Ann., Tit. 43, 3 (West Supp.2005)
Ore.Rev.Stat. 106.060 (2003)
23 Pa. Cons.Stat. 1304 (1997)
R.I. Gen. Laws 15211 (Supp.2004)
S.D. Codified Laws 2519 (West 2004)
Tenn.Code Ann. 363106 (1996)
Tex. Fam.Code Ann. 2.1012.103 (West 1998)
Utah Code Ann. 3019 (Lexis Supp.2004)
Vt. Stat. Ann., Tit. 18, 5142 (Lexis 2000)
Va.Code Ann. 2045.1, 2048, 2049 (Lexis 2004)
Wash. Rev.Code Ann. 26.04.210 (West 2005)
W. Va.Code 482301 (Lexis 2004)
Wis. Stat. 765.02 (2001)
Wyo. Stat. Ann. 201102 (Lexis 2003)

GINSBURG joins, concurring.
Perhaps even more important than our
specific holding today is our reaffirmation
of the basic principle that informs the
Courts interpretation of the Eighth
Amendment. If the meaning of that
Amendment had been frozen when it was
originally drafted, it would impose no impediment to the execution of 7yearold
children today. See Stanford v. Kentucky,
492 U.S. 361, 368, 109 S.Ct. 2969, 106
L.Ed.2d 306 (1989) (describing the common law at the time of the Amendments
adoption). The evolving standards of de-
cency that have driven our construction of

this critically important part of the Bill of
Rights foreclose any such reading of the
Amendment. In the best tradition of the
common law, the pace of that evolution is a
matter for continuing debate; but that our
understanding of the Constitution does
change from time to time has been settled
since John Marshall breathed life into its
text. If great lawyers of his dayAlexander Hamilton, for examplewere sitting
with us today, I would expect them to join
Justice KENNEDYs opinion for the
Court. In all events, I do so without
hesitation.
1206
Justice OCONNOR, dissenting.

The Courts decision today establishes a
categorical rule forbidding the execution of
any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense.
Neither the objective evidence of contemporary societal values, nor the Courts
moral proportionality analysis, nor the two
in tandem suffice to justify this ruling.
S 588Although the Court finds support for
its decision in the fact that a majority of
the States now disallow capital punishment
of 17yearold offenders, it refrains from
asserting that its holding is compelled by a
genuine national consensus. Indeed, the
evidence before us fails to demonstrate
conclusively that any such consensus has
emerged in the brief period since we upheld the constitutionality of this practice in
Stanford v. Kentucky, 492 U.S. 361, 109
S.Ct. 2969, 106 L.Ed.2d 306 (1989).
Instead, the rule decreed by the Court
rests, ultimately, on its independent moral
judgment that death is a disproportionately severe punishment for any 17yearold
offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But
the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures:
that at least some 17yearold murderers
are sufficiently mature to deserve the
death penalty in an appropriate case. Nor
has it been shown that capital sentencing
juries are incapable of accurately assessing
a youthful defendants maturity or of giving due weight to the mitigating characteristics associated with youth.
On this recordand especially in light
of the fact that so little has changed since
our recent decision in StanfordI would
not substitute our judgment about the
moral propriety of capital punishment for
543 U.S. 587
17yearold murderers for the judgments

of the Nations legislatures. Rather, I
would demand a clearer showing that our
society truly has set its face against this
practice before reading the Eighth Amendment categorically to forbid it.
I
A
Let me begin by making clear that I
agree with much of the Courts description
of the general principles that guide our
Eighth Amendment jurisprudence. The
Amendment S 589bars not only punishments
that are inherently barbaric, but also
those that are excessive in relation to
the crime committed. Coker v. Georgia,
433 U.S. 584, 592, 97 S.Ct. 2861, 53
L.Ed.2d 982 (1977) (plurality opinion). A
sanction is therefore beyond the States
authority to inflict if it makes no measurable contribution to acceptable penal
goals or is grossly out of proportion to the
severity of the crime. Ibid. The basic
precept of justice that punishment for
crime should be TTT proportioned to [the]
offense, Weems v. United States, 217 U.S.
349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910),
applies with special force to the death penalty. In capital cases, the Constitution
demands that the punishment be tailored
both to the nature of the crime itself and
to the defendants personal responsibility
and moral guilt. Enmund v. Florida, 458
U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d
1140 (1982); see also id., at 825, 102 S.Ct.
3368 (OCONNOR, J., dissenting); Tison
v. Arizona, 481 U.S. 137, 149, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987); Eddings v.
Oklahoma, 455 U.S. 104, 111112, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982).
It is by now beyond serious dispute that
the Eighth Amendments prohibition of
cruel and unusual punishments is not a
static command. Its mandate would be
543 U.S. 591
1207
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
little more than a dead letter today if it

barred only those sanctionslike the execution of children under the age of seven
that civilized society had already repudiated in 1791. See ante, at 1205 (STEVENS,
J., concurring); cf. Stanford, supra, at 368,
109 S.Ct. 2969 (discussing the common law
rule at the time the Bill of Rights was
adopted). Rather, because [t]he basic
concept underlying the Eighth Amendment is nothing less than the dignity of
man, the Amendment must draw its
meaning from the evolving standards of
decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S.
86, 100101, 78 S.Ct. 590, 2 L.Ed.2d 630
(1958) (plurality opinion). In discerning
those standards, we look to objective factors to the maximum possible extent.
Coker, supra, at 592, 97 S.Ct. 2861 (plurality opinion). Laws enacted by the Nations
legislatures provide the clearest and most
reliable objective evidence of contemporary values. Penry v. Lynaugh, 492 U.S.
302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989). S 590And data reflecting the actions
of sentencing juries, where available, can
also afford a significant and reliable objective index of societal mores. Coker,
supra, at 596, 97 S.Ct. 2861 (plurality opinion) (quoting Gregg v. Georgia, 428 U.S.
153, 181, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976) (joint opinion of Stewart, Powell,
and STEVENS, JJ.)).
Although objective evidence of this nature is entitled to great weight, it does not
end our inquiry. Rather, as the Court
today reaffirms, see ante, at 11911192,
11971198, the 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, supra, at
[P]roportionalityat least as regards
capital punishmentnot only requires an
inquiry into contemporary standards as ex-
pressed by legislators and jurors, but also

involves the notion that the magnitude of
the punishment imposed must be related
to the degree of the harm inflicted on the
victim, as well as to the degree of the
defendants blameworthiness. Enmund,
supra, at 815, 102 S.Ct. 3368 (OCONNOR,
J., dissenting). We therefore have a constitutional obligation to judge for ourselves whether the death penalty is excessive punishment for a particular offense or
class of offenders. See Stanford, 492 U.S.,
at 382, 109 S.Ct. 2969 (OCONNOR, J.,
concurring in part and concurring in judgment); see also Enmund, supra, at 797,
102 S.Ct. 3368 ([I]t is for us ultimately to
judge whether the Eighth Amendment
permits imposition of the death penalty).
B
Twice in the last two decades, the Court
has applied these principles in deciding
whether the Eighth Amendment permits
capital punishment of adolescent offenders.
In Thompson v. Oklahoma, 487 U.S. 815,
108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), a
plurality of four Justices concluded that
the Eighth Amendment barred capital
punishment of an offender for a crime
committed before the age of 16. I concurred in that judgment on narrower
grounds. At the time, 32 state legislatures had definitely concluded that no 15
yearold should be exposed to the threat
S 591of execution, and no legislature had affirmatively endorsed such a practice. Id.,
at 849, 108 S.Ct. 2687 (OCONNOR, J.,
concurring in judgment). While acknowledging that a national consensus forbidding the execution of 15yearold offenders very likely did exist, I declined to
adopt that conclusion as a matter of constitutional law without clearer evidentiary
support. Ibid. Nor, in my view, could the
issue be decided based on moral proportionality arguments of the type advanced
1208
by the Court today. Granting the premise

that adolescents are generally less blameworthy than adults who commit similar
crimes, I wrote, it does not necessarily
follow that all 15yearolds are incapable
of the moral culpability that would justify
the imposition of capital punishment. Id.,
at 853, 108 S.Ct. 2687. Similarly, we had
before us no evidence that 15yearolds
as a class are inherently incapable of being
deterred from major crimes by the prospect of the death penalty. Ibid. I determined instead that, in light of the strong
but inconclusive evidence of a national consensus against capital punishment of under16 offenders, concerns rooted in the
Eighth Amendment required that we apply a clear statement rule. Because the
capital punishment statute in Thompson
did not specify the minimum age at which
commission of a capital crime would be
punishable by death, I concluded that the
statute could not be read to authorize the
death penalty for a 15yearold offender.
Id., at 857858, 108 S.Ct. 2687.
The next year, in Stanford v. Kentucky,
supra, the Court held that the execution of
16 or 17yearold capital murderers did
not violate the Eighth Amendment. I
again wrote separately, concurring in part
and concurring in the judgment. At that
time, 25 States did not permit the execution of under18 offenders, including 13
that lacked the death penalty altogether.
See id., at 370, 109 S.Ct. 2969. While
noting that [t]he day may come when
there is such general legislative rejection
of the execution of 16 or 17yearold
capital murderers that a clear national
consensus can be said to have developed,
I concluded that that day had not yet
arrived. Id., S 592at 381382, 109 S.Ct. 2969.
I reaffirmed my view that, beyond assessing the actions of legislatures and juries,
543 U.S. 591
the Court has a constitutional obligation to

judge for itself whether capital punishment
is a proportionate response to the defendants blameworthiness. Id., at 382, 109
S.Ct. 2969. Nevertheless, I concluded that
proportionality arguments similar to those
endorsed by the Court today did not justify a categorical Eighth Amendment rule
against capital punishment of 16 and 17
yearold offenders.
See ibid. (citing
Thompson, supra, at 853854, 108 S.Ct.
2687 (OCONNOR, J., concurring in judgment)).
The Court has also twice addressed the
constitutionality of capital punishment of
mentally retarded offenders. In Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989), decided the same year
as Stanford, we rejected the claim that the
Eighth Amendment barred the execution
of the mentally retarded. At that time,
only two States specifically prohibited the
practice, while 14 others did not have capital punishment at all. 492 U.S., at 334, 109
S.Ct. 2934. Much had changed when we
revisited the question three Terms ago in
2242, 153 L.Ed.2d 335 (2002). In Atkins,
the Court reversed Penry and held that
the Eighth Amendment forbids capital
punishment of mentally retarded offenders. 536 U.S., at 321, 122 S.Ct. 2242. In
the 13 years between Penry and Atkins,
there had been a wave of legislation prohibiting the execution of such offenders.
By the time we heard Atkins, 30 States
barred the death penalty for the mentally
retarded, and even among those States
theoretically permitting such punishment,
very few had executed a mentally retarded
offender in recent history. 536 U.S., at
314316, 122 S.Ct. 2242. On the basis of
this evidence, the Court determined that it
was fair to say that a national consensus
ha[d] developed against the practice. Id.,
at 316, 122 S.Ct. 2242.
543 U.S. 594
1209
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
But our decision in Atkins did not rest

solely on this tentative conclusion. Rather, the Courts independent moral judgment was dispositive. The Court observed
that mentally retarded persons suffer from
major cognitive and beShavioral593 deficits,
i.e., subaverage intellectual functioning
and significant limitations in adaptive
skills such as communication, self-care,
and self-direction that became manifest before age 18. Id., at 318, 122 S.Ct. 2242.
Because of their impairments, [such persons] by definition TTT have diminished
capacities to understand and process information, to communicate, to abstract from
mistakes and learn from experience, to
engage in logical reasoning, to control impulses, and to understand the reactions of
others. Ibid. We concluded that these
deficits called into serious doubt whether
the execution of mentally retarded offenders would measurably contribute to the
principal penological goals that capital
punishment is intended to serveretribution and deterrence. Id., at 319321, 122
S.Ct. 2242. Mentally retarded offenders
impairments so diminish their personal
moral culpability that it is highly unlikely
that such offenders could ever deserve the
ultimate punishment, even in cases of capital murder. Id., at 319, 122 S.Ct. 2242.
And these same impairments made it very
improbable that the threat of the death
penalty would deter mentally retarded
persons from committing capital crimes.
Id., at 319320, 122 S.Ct. 2242. Having
concluded that capital punishment of the
mentally retarded is inconsistent with the
Eighth Amendment, the Court le[ft] to
the State[s] the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences. Id., at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399,
416417, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986)).
II
A
Although the general principles that
guide our Eighth Amendment jurisprudence afford some common ground, I part
ways with the Court in applying them to
the case before us. As a preliminary matter, I take issue with the Courts failure to
reprove, or even to acknowledge, the Supreme Court of Missouris unabashed refusal to follow our S 594controlling decision in
Stanford. The lower court concluded that,
despite Stanfords clear holding and historical recency, our decision was no longer
binding authority because it was premised
on what the court deemed an obsolete
assessment of contemporary values. Quite
apart from the merits of the constitutional
question, this was clear error.
Because
the
Eighth
Amendment
draw[s] its meaning from TTT evolving
standards of decency, Trop, 356 U.S., at
101, 78 S.Ct. 590 (plurality opinion), significant changes in societal mores over time
may require us to reevaluate a prior decision.
Nevertheless, it remains this
Courts prerogative alone to overrule one
of its precedents. State Oil Co. v. Khan,
522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d
199 (1997) (emphasis added). That is so
even where subsequent decisions or factual
developments may appear to have significantly undermined the rationale for our
earlier holding. United States v. Hatter,
532 U.S. 557, 567, 121 S.Ct. 1782, 149
L.Ed.2d 820 (2001); see also State Oil Co.,
supra, at 20, 118 S.Ct. 275; Rodriguez de
Quijas v. Shearson/American Express,
Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104
L.Ed.2d 526 (1989). The Eighth Amendment provides no exception to this rule.
On the contrary, clear, predictable, and
uniform constitutional standards are especially desirable in this sphere. By affirming the lower courts judgment without so
1210
much as a slap on the hand, todays decision threatens to invite frequent and disruptive reassessments of our Eighth
Amendment precedents.
B
543 U.S. 594
tions for Juvenile Crimes, January 1,

1973December 31, 2004, No. 76, pp. 1523
(2005), available at http://www.law.onu.edu/
faculty/streib/documents/Juv
DeathDec2004.pdf (last updated Jan. 31, 2005)
(as visited Feb. 25, 2005, and available in
Clerk of Courts case file) (hereinafter
Streib). In these respects, the objective
evidence in this case is, indeed, similar,
and in some respects parallel to, the evidence upon which we relied in Atkins.
Ante, at 1192.
In determining whether the juvenile

death penalty comports with contemporary
standards of decency, our inquiry begins
with the clearest and most reliable objective evidence of contemporary values
the actions of the Nations legislatures.
Penry, supra, at 331, 109 S.Ct. 2934. As
the Court emphasizes, the overall number
of jurisdictions that currently disallow the
execution of under18 offenders is the
same as the number that forbade the execution of mentally retarded offenders when
Atkins was decided. S 595Ante, at 1192. At
present, 12 States and the District of Columbia do not have the death penalty,
while an additional 18 States and the Federal Government authorize capital punishment but prohibit the execution of under
18 offenders. See ante, at 12011202 (Appendix A). And here, as in Atkins, only a
very small fraction of the States that permit capital punishment of offenders within
the relevant class has actually carried out
such an execution in recent history: Six
States have executed under18 offenders
in the 16 years since Stanford, while five
States had executed mentally retarded offenders in the 13 years prior to Atkins.
See Atkins, 536 U.S., at 316, 122 S.Ct.
2242; V. Streib, The Juvenile Death Penalty Today: Death Sentences and Execu-
While the similarities between the two

cases are undeniable, the objective evidence of national consensus is marginally
weaker here. Most importantly, in Atkins
there was significant evidence of opposition to the execution of the mentally retarded, but there was virtually no countervailing evidence of affirmative legislative
support for this practice. Cf. Thompson,
487 U.S., at 849, 108 S.Ct. 2687 (OCONNOR, J., concurring in judgment) (attributing significance to the fact that no legislature in this country has affirmatively and
unequivocally endorsed capital punishment of 15yearold offenders). The
States that permitted such executions did
so only because they had not enacted any
prohibitory legislation. Here, by contrast,
at least seven States have current statutes
that specifically set 16 or 17 as the minimum age at which S 596commission of a capital crime can expose the offender to the
death penalty. See ante, at 12001201
(Appendix A).* Five of these seven States
presently have one or more juvenile of-
* In 12 other States that have capital punishment, under18 offenders can be subject to
the death penalty as a result of transfer statutes that permit such offenders to be tried as
adults for certain serious crimes. See ante, at
12001201 (Appendix A). As I observed in
852, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988)
(opinion concurring in judgment): There are
many reasons, having nothing whatsoever to
do with capital punishment, that might moti-
vate a legislature to provide as a general

matter for some [minors] to be channeled into
the adult criminal justice process. Accordingly, while these 12 States clearly cannot be
counted as opposing capital punishment of
under18 offenders, the fact that they permit
such punishment through this indirect mechanism does not necessarily show affirmative
and unequivocal legislative support for the
practice. See ibid.
543 U.S. 598
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
fenders on death row (six if respondent is

included in the count), see Streib 2431,
and four of them have executed at least
one under18 offender in the past 15
years, see id., at 1523. In all, there are
currently over 70 juvenile offenders on
death row in 12 different States (13 including respondent). See id., at 11, 2431.
This evidence suggests some measure of
continuing public support for the availability of the death penalty for 17yearold
capital murderers.
Moreover, the Court in Atkins made
clear that it was not so much the number
of [States forbidding execution of the mentally retarded] that [was] significant, but
the consistency of the direction of change.
536 U.S., at 315, 122 S.Ct. 2242. In contrast to the trend in Atkins, the States
have not moved uniformly toward abolishing the juvenile death penalty. Instead,
since our decision in Stanford, two States
have expressly reaffirmed their support
for this practice by enacting statutes setting 16 as the minimum age for capital
punishment. See Mo.Rev.Stat. 565.020.2
(2000); Va.Code Ann. 18.210(a) (Lexis
2004). Furthermore, as the Court emphasized in Atkins itself, 536 U.S., at 315, n.
18, 122 S.Ct. 2242, the pace of legislative
action in this context has been considerably slower than it was with regard to
capital punishment of the mentally reStarded.597 In the 13 years between our decisions in Penry and Atkins, no fewer than
16 States banned the execution of mentally
retarded offenders. See Atkins, supra, at
314315, 122 S.Ct. 2242. By comparison,
since our decision 16 years ago in Stanford, only four States that previously permitted the execution of under18 offenders, plus the Federal Government, have
legislatively reversed course, and one additional States high court has construed the
States death penalty statute not to apply
to under18 offenders, see State v. Furman, 122 Wash.2d 440, 458, 858 P.2d 1092,
1103 (1993) (en banc). The slower pace of
1211
change is no doubt partially attributable,

as the Court says, to the fact that 12
States had already imposed a minimum
age of 18 when Stanford was decided. See
ante, at 11931194. Nevertheless, the extraordinary wave of legislative action leading up to our decision in Atkins provided
strong evidence that the country truly had
set itself against capital punishment of the
mentally retarded. Here, by contrast, the
halting pace of change gives reason for
pause.
To the extent that the objective evidence
supporting todays decision is similar to
that in Atkins, this merely highlights the
fact that such evidence is not dispositive in
either of the two cases. After all, as the
Court today confirms, ante, at 1191, 1197
1198, the Constitution requires that in
the end our own judgment TTT be brought
to bear in deciding whether the Eighth
Amendment forbids a particular punishment, Atkins, supra, at 312, 122 S.Ct. 2242
(quoting Coker, 433 U.S., at 597, 97 S.Ct.
2861 (plurality opinion)). This judgment is
not merely a rubber stamp on the tally of
legislative and jury actions. Rather, it is
an integral part of the Eighth Amendment
inquiryand one that is entitled to independent weight in reaching our ultimate
decision.
Here, as in Atkins, the objective evidence of a national consensus is weaker
than in most prior cases in which the
Court has struck down a particular punishment under the Eighth Amendment. See
Coker, supra, at 595596, 97 S.Ct. 2861
(plurality opinion) (striking down death
penalty for rape of an adult S 598woman,
where only one jurisdiction authorized
such punishment); Enmund, 458 U.S., at
792, 102 S.Ct. 3368 (striking down death
penalty for certain crimes of aiding and
abetting felony-murder, where only eight
jurisdictions authorized such punishment);
Ford v. Wainwright, 477 U.S., at 408, 106
1212
S.Ct. 2595 (striking down capital punishment of the insane, where no jurisdiction
permitted this practice). In my view, the
objective evidence of national consensus,
standing alone, was insufficient to dictate
the Courts holding in Atkins. Rather, the
compelling moral proportionality argument
against capital punishment of mentally retarded offenders played a decisive role in
persuading the Court that the practice was
inconsistent with the Eighth Amendment.
Indeed, the force of the proportionality
argument in Atkins significantly bolstered
the Courts confidence that the objective
evidence in that case did, in fact, herald
the emergence of a genuine national consensus. Here, by contrast, the proportionality argument against the juvenile death
penalty is so flawed that it can be given
little, if any, analytical weightit proves
too weak to resolve the lingering ambiguities in the objective evidence of legislative
consensus or to justify the Courts categorical rule.
C
Seventeen-year-old murderers must be
categorically exempted from capital punishment, the Court says, because they
cannot with reliability be classified among
the worst offenders. Ante, at 1195. That
conclusion is premised on three perceived
differences between adults, who have already reached their 18th birthdays, and
juveniles, who have not. See ante, at
11951196. First, juveniles lack maturity
and responsibility and are more reckless
than adults. Second, juveniles are more
vulnerable to outside influences because
they have less control over their surroundings. And third, a juveniles character is
not as fully formed as that of an adult.
Based on these characteristics, the Court
determines that 17yearold capital murderers are not as S 599blameworthy as adults
guilty of similar crimes; that 17yearolds
are less likely than adults to be deterred
543 U.S. 598
by the prospect of a death sentence; and

that it is difficult to conclude that a 17
yearold who commits even the most heinous of crimes is irretrievably depraved.
Ante, at 11951197. The Court suggests
that a rare case might arise in which a
juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death. Ante, at 1197. However,
the Court argues that a categorical agebased prohibition is justified as a prophylactic rule because [t]he differences between juvenile and adult offenders are too
marked and well understood to risk allowing a youthful person to receive the death
penalty despite insufficient culpability.
Ante, at 1197.
It is beyond cavil that juveniles as a
class are generally less mature, less responsible, and less fully formed than
adults, and that these differences bear on
juveniles comparative moral culpability.
See, e.g., Johnson v. Texas, 509 U.S. 350,
367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)
(There is no dispute that a defendants
youth is a relevant mitigating circumstance); id., at 376, 113 S.Ct. 2658
(OCONNOR, J., dissenting) ([T]he vicissitudes of youth bear directly on the young
offenders culpability and responsibility for
the crime); Eddings, 455 U.S., at 115
116, 102 S.Ct. 869 (Our history is replete
with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible
than adults). But even accepting this
premise, the Courts proportionality argument fails to support its categorical rule.
First, the Court adduces no evidence
whatsoever in support of its sweeping conclusion, see ante, at 11961197, that it is
only in rare cases, if ever, that 17year
old murderers are sufficiently mature and
act with sufficient depravity to warrant the
death penalty. The fact that juveniles are
543 U.S. 601
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
generally less culpable for their misconduct than adults does not necessarily mean
that a 17yearold murderer cannot be
sufficiently culpable to merit the death
penalty. At most, the S 600Courts argument
suggests that the average 17yearold
murderer is not as culpable as the average
adult murderer. But an especially depraved juvenile offender may nevertheless
be just as culpable as many adult offenders
considered bad enough to deserve the
death penalty. Similarly, the fact that the
availability of the death penalty may be
less likely to deter a juvenile from committing a capital crime does not imply that
this threat cannot effectively deter some
17yearolds from such an act. Surely
there is an age below which no offender,
no matter what his crime, can be deemed
to have the cognitive or emotional maturity
necessary to warrant the death penalty.
But at least at the margins between adolescence and adulthoodand especially for
17yearolds such as respondentthe relevant differences between adults and
juveniles appear to be a matter of degree, rather than of kind. It follows that a
legislature may reasonably conclude that
at least some 17yearolds can act with
sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case.
Indeed, this appears to be just such a
case. Christopher Simmons murder of
Shirley Crook was premeditated, wanton,
and cruel in the extreme. Well before he
committed this crime, Simmons declared
that he wanted to kill someone. On several occasions, he discussed with two friends
(ages 15 and 16) his plan to burglarize a
house and to murder the victim by tying
the victim up and pushing him from a
bridge. Simmons said they could get
away with it because they were minors.
Brief for Petitioner 3. In accord with this
plan, Simmons and his 15yearold accom-
1213
plice broke into Mrs. Crooks home in the

middle of the night, forced her from her
bed, bound her, and drove her to a state
park. There, they walked her to a railroad trestle spanning a river, hog-tied
her with electrical cable, bound her face
completely with duct tape, and pushed her,
still alive, from the trestle. She drowned
in the water below. Id., at 4. One can
S 601scarcely imagine the terror that this
woman must have suffered throughout the
ordeal leading to her death. Whatever can
be said about the comparative moral culpability of 17yearolds as a general matter,
Simmons actions unquestionably reflect
a consciousness materially more depraved than that of TTT the average murderer. Atkins, 536 U.S., at 319, 122 S.Ct.
2242 (quoting Godfrey v. Georgia, 446 U.S.
420, 433, 100 S.Ct. 1759, 64 L.Ed.2d 398
(1980)). And Simmons prediction that he
could murder with impunity because he
had not yet turned 18though inaccuratesuggests that he did take into account the perceived risk of punishment in
deciding whether to commit the crime.
Based on this evidence, the sentencing
jury certainly had reasonable grounds for
concluding that, despite Simmons youth,
he ha[d] sufficient psychological maturity
when he committed this horrific murder,
and at the same time demonstrate[d] sufficient depravity, to merit a sentence of
death. Ante, at 1197.
The Courts proportionality argument
suffers from a second and closely related
defect: It fails to establish that the differences in maturity between 17yearolds
and young adults are both universal
enough and significant enough to justify a
bright-line prophylactic rule against capital
punishment of the former. The Courts
analysis is premised on differences in the
aggregate between juveniles and adults,
which frequently do not hold true when
comparing individuals. Although it may
1214
be that many 17yearold murderers lack

sufficient maturity to deserve the death
penalty, some juvenile murderers may be
quite mature. Chronological age is not an
unfailing measure of psychological development, and common experience suggests
that many 17yearolds are more mature
than the average young adult. In short,
the class of offenders exempted from capital punishment by todays decision is too
broad and too diverse to warrant a categorical prohibition. Indeed, the age-based
line drawn by the Court is indefensibly
arbitraryit quite likely will protect a
number of offenders who are mature
enough to S 602deserve the death penalty
and may well leave vulnerable many who
are not.
For purposes of proportionality analysis,
17yearolds as a class are qualitatively
and materially different from the mentally
retarded. Mentally retarded offenders,
as we understood that category in Atkins,
are defined by precisely the characteristics
which render death an excessive punishment. A mentally retarded person is, by
definition, one whose cognitive and behavioral capacities have been proved to fall
below a certain minimum. See Atkins,
536 U.S., at 318, 122 S.Ct. 2242; see also
id., at 308, n. 3, 122 S.Ct. 2242 (discussing
characteristics of mental retardation); id.,
at 317, and n. 22, 122 S.Ct. 2242 (leaving to
the States the development of mechanisms
to determine which offenders fall within
the class exempt from capital punishment).
Accordingly, for purposes of our decision
in Atkins, the mentally retarded are not
merely less blameworthy for their misconduct or less likely to be deterred by the
death penalty than others. Rather, a
mentally retarded offender is one whose
demonstrated impairments make it so
highly unlikely that he is culpable enough
to deserve the death penalty or that he
could have been deterred by the threat of
death, that execution is not a defensible
543 U.S. 601
punishment. There is no such inherent or

accurate fit between an offenders chronological age and the personal limitations
which the Court believes make capital
punishment excessive for 17yearold
murderers. Moreover, it defies common
sense to suggest that 17yearolds as a
class are somehow equivalent to mentally
retarded persons with regard to culpability
or susceptibility to deterrence. Seventeen-year-olds may, on average, be less
mature than adults, but that lesser maturity simply cannot be equated with the major, lifelong impairments suffered by the
mentally retarded.
The proportionality issues raised by the
Court clearly implicate Eighth Amendment concerns. But these concerns may
properly be addressed not by means of an
arbitrary, categorical age-based rule, but
rather
through
individualized
S 603sentencing in which juries are required
to give appropriate mitigating weight to
the defendants immaturity, his susceptibility to outside pressures, his cognizance of
the consequences of his actions, and so
forth. In that way the constitutional response can be tailored to the specific problem it is meant to remedy. The Eighth
Amendment guards against the execution
of those who are insufficient[ly] culpab[le], see ante, at 1197, in significant
part, by requiring sentencing that reflect[s] a reasoned moral response to the
defendants background, character, and
crime.
California v. Brown, 479 U.S.
538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934
(1987) (OCONNOR, J., concurring). Accordingly, the sentencer in a capital case
must be permitted to give full effect to all
constitutionally relevant mitigating evidence. See Tennard v. Dretke, 542 U.S.
274, 283285, 124 S.Ct. 2562, 25692570,
159 L.Ed.2d 384 (2004); Lockett v. Ohio,
438 U.S. 586, 604, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978) (plurality opinion). A
ROPER v. SIMMONS
543 U.S. 605
Cite as 125 S.Ct. 1183 (2005)
defendants youth or immaturity is, of

course, a paradigmatic example of such
evidence. See Eddings, 455 U.S., at 115
116, 102 S.Ct. 869.
Although the prosecutors apparent attempt to use respondents youth as an
aggravating circumstance in this case is
troubling, that conduct was never challenged with specificity in the lower courts
and is not directly at issue here. As the
Court itself suggests, such overreaching
would best be addressed, if at all, through
a more narrowly tailored remedy. See
ante, at 1197. The Court argues that sentencing juries cannot accurately evaluate a
youthful offenders maturity or give appropriate weight to the mitigating characteristics related to youth. But, again, the
Court presents no real evidenceand the
record appears to contain nonesupporting this claim. Perhaps more importantly,
the Court fails to explain why this duty
should be so different from, or so much
more difficult than, that of assessing and
giving proper effect to any other qualitative capital sentencing factor. I would not
be so quick to conclude that the constitutional safeguards, the sentencing juries,
and the trial judges upon S 604which we
place so much reliance in all capital cases
are inadequate in this narrow context.
D
I turn, finally, to the Courts discussion
of foreign and international law. Without
question, there has been a global trend in
recent years toward abolishing capital punishment for under18 offenders. Very
few, if any, countries other than the United States now permit this practice in law
or in fact. See ante, at 1199. While acknowledging that the actions and views of
other countries do not dictate the outcome
of our Eighth Amendment inquiry, the
Court asserts that the overwhelming
weight of international opinion against the
juvenile death penalty TTT does provide
1215
respected and significant confirmation for

[its] own conclusions. Ante, at 1200. Because I do not believe that a genuine national consensus against the juvenile death
penalty has yet developed, and because I
do not believe the Courts moral proportionality argument justifies a categorical,
age-based constitutional rule, I can assign
no such confirmatory role to the international consensus described by the Court.
In short, the evidence of an international
consensus does not alter my determination
that the Eighth Amendment does not, at
this time, forbid capital punishment of 17
yearold murderers in all cases.
Nevertheless, I disagree with Justice
SCALIAs contention, post, at 12251229
(dissenting opinion), that foreign and international law have no place in our Eighth
Amendment jurisprudence.
Over the
course of nearly half a century, the Court
has consistently referred to foreign and
international law as relevant to its assessment of evolving standards of decency.
See Atkins, supra, at 317, n. 21, 122 S.Ct.
2242; Thompson, 487 U.S., at 830831, and
n. 31, 108 S.Ct. 2687 (plurality opinion);
Enmund, 458 U.S., at 796797, n. 22, 102
S.Ct. 3368; Coker, 433 U.S., at 596, n. 10,
97 S.Ct. 2861 (plurality opinion); Trop, 356
U.S., at 102103, 78 S.Ct. 590 (plurality
opinion). This inquiry reflects the special
character of the Eighth S 605Amendment,
which, as the Court has long held, draws
its meaning directly from the maturing
values of civilized society. Obviously,
American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of
its exposition so dictate. Cf. post, at 1226
1227 (SCALIA, J., dissenting) (discussing
distinctively American rules of law related
to the Fourth Amendment and the Establishment Clause). But this Nations evolving understanding of human dignity cer-
1216
543 U.S. 605
tainly is neither wholly isolated from, nor

inherently at odds with, the values prevailing in other countries. On the contrary,
we should not be surprised to find congruence between domestic and international
values, especially where the international
community has reached clear agreement
expressed in international law or in the
domestic laws of individual countriesthat
a particular form of punishment is inconsistent with fundamental human rights.
At least, the existence of an international
consensus of this nature can serve to confirm the reasonableness of a consonant and
genuine American consensus. The instant
case presents no such domestic consensus,
however, and the recent emergence of an
otherwise global consensus does not alter
that basic fact.
* * *
(though marginally weaker than) the evidence before the Court in Atkins. But
Atkins could not have been decided as it
was based solely on such evidence. Rather, the compelling proportionality argument against capital punishment of the
mentally retarded played a decisive role in
the Courts Eighth Amendment ruling.
Moreover, the constitutional rule adopted
in Atkins was tailored to this proportionality argument: It exempted from capital
punishment a defined group of offenders
whose proven impairments rendered it
highly unlikely, and perhaps impossible,
that they could act with the degree of
culpability necessary to deserve death.
And Atkins left to the States the development of mechanisms to determine which
individual offenders fell within this class.
In determining whether the Eighth

Amendment permits capital punishment of
a particular offense or class of offenders,
we must look to whether such punishment
is consistent with contemporary standards
of decency. We are obligated to weigh
both the objective evidence of societal values and our own judgment as to whether
death is an excessive sanction in the context at hand. In the instant case, the
objective evidence is inconclusive; standing alone, it does not demonstrate that our
society has repudiated capital punishment
of 17yearold offenders in all cases.
Rather, the actions of the Nations legislatures suggest that, although a clear and
durable national consensus against this
practice may in time S 606emerge, that day
has yet to arrive. By acting so soon after
our decision in Stanford, the Court both
pre-empts the democratic debate through
which genuine consensus might develop
and simultaneously runs a considerable
risk of inviting lower court reassessments
of our Eighth Amendment precedents.
In the instant case, by contrast, the

moral proportionality arguments against
the juvenile death penalty fail to support
the rule the Court adopts today. There is
no question that the chronological age of
a minor is itself a relevant mitigating factor of great weight, Eddings, 455 U.S., at
116, 102 S.Ct. 869, and that sentencing
juries must be given an opportunity carefully to consider a defendants age and
maturity in deciding whether to assess the
death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can
reasonably conclude, as many have, that
some 17yearold murderers are mature
enough to deserve the death penalty in an
appropriate case. And nothing in the record before us suggests that sentencing
juries are so unable accurately to assess a
17yearold deSfendants607 maturity, or so
incapable of giving proper weight to youth
as a mitigating factor, that the Eighth
Amendment requires the bright-line rule
imposed today. In the end, the Courts
flawed proportionality argument simply
To be sure, the objective evidence supporting todays decision is similar to
543 U.S. 608
1217
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
cannot bear the weight the Court would

place upon it.
Reasonable minds can differ as to the
minimum age at which commission of a
serious crime should expose the defendant
to the death penalty, if at all. Many jurisdictions have abolished capital punishment
altogether, while many others have determined that even the most heinous crime, if
committed before the age of 18, should not
be punishable by death. Indeed, were my
office that of a legislator, rather than a
judge, then I, too, would be inclined to
support legislation setting a minimum age
of 18 in this context. But a significant
number of States, including Missouri, have
decided to make the death penalty potentially available for 17yearold capital
murderers such as respondent. Without a
clearer showing that a genuine national
consensus forbids the execution of such
offenders, this Court should not substitute
its own inevitably subjective judgment
on how best to resolve this difficult moral
question for the judgments of the Nations
democratically elected legislatures. See
Thompson, 487 U.S., at 854, 108 S.Ct. 2687
(OCONNOR, J., concurring in judgment).
Justice SCALIA, with whom THE
CHIEF JUSTICE and Justice THOMAS
join, dissenting.
In urging approval of a constitution that
gave life-tenured judges the power to nullify laws enacted by the peoples representatives, Alexander Hamilton assured the citizens of New York that there was little risk
in this, since [t]he judiciary TTT ha[s]
neither FORCE nor WILL but merely
judgment. The Federalist No. 78, p. 465
(C. Rossiter ed.1961). But Hamilton had
in mind a traditional judiciary, bound
down by strict rules and precedents which
serve to define S 608and point out their duty
in every particular case that comes before
them. Id., at 471. Bound down, indeed.

What a mockery todays opinion makes of
Hamiltons expectation, announcing the
Courts conclusion that the meaning of our
Constitution has changed over the past 15
yearsnot, mind you, that this Courts
decision 15 years ago was wrong, but that
the Constitution has changed. The Court
reaches this implausible result by purporting to advert, not to the original meaning
of the Eighth Amendment, but to the
evolving standards of decency, ante, at
1190 (internal quotation marks omitted), of
our national society. It then finds, on the
flimsiest of grounds, that a national consensus which could not be perceived in our
peoples laws barely 15 years ago now
solidly exists. Worse still, the Court says
in so many words that what our peoples
laws say about the issue does not, in the
last analysis, matter: [I]n the end our
own judgment will be brought to bear on
the question of the acceptability of the
death penalty under the Eighth Amendment. Ante, at 11911192 (internal quotation marks omitted). The Court thus
proclaims itself sole arbiter of our Nations
moral standardsand in the course of discharging that awesome responsibility purports to take guidance from the views of
foreign courts and legislatures. Because I
do not believe that the meaning of our
Eighth Amendment, any more than the
meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court
and like-minded foreigners, I dissent.
I
In determining that capital punishment
of offenders who committed murder before
age 18 is cruel and unusual under the
Eighth Amendment, the Court first considers, in accordance with our modern
(though in my view mistaken) jurisprudence, whether there is a national consensus, ibid. (internal quotation marks omit-
1218
ted), that laws allowing such S 609executions

contravene our modern standards of decency, 1 Trop v. Dulles, 356 U.S. 86, 101,
78 S.Ct. 590, 2 L.Ed.2d 630 (1958). We
have held that this determination should
be based on objective indicia that reflect
the public attitude toward a given sanctionnamely, statutes passed by societys elected representatives. Stanford v.
Kentucky, 492 U.S. 361, 370, 109 S.Ct.
2969, 106 L.Ed.2d 306 (1989) (internal quotation marks omitted). As in Atkins v.
Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242,
153 L.Ed.2d 335 (2002), the Court dutifully
recites this test and claims halfheartedly
that a national consensus has emerged
since our decision in Stanford, because 18
Statesor 47% of States that permit capital punishmentnow have legislation prohibiting the execution of offenders under
18, and because all of 4 States have
adopted such legislation since Stanford.
See ante, at 11921193.
Words have no meaning if the views of
less than 50% of death penalty States can
constitute a national consensus. See Atkins, supra, at 342345, 122 S.Ct. 2242
(SCALIA, J., dissenting). Our previous
cases have required overwhelming opposition to a challenged practice, generally
over a long period of time. In Coker v.
Georgia, 433 U.S. 584, 595596, 97 S.Ct.
2861, 53 L.Ed.2d 982 (1977), a plurality
concluded the Eighth Amendment prohibited capital punishment for rape of an
adult woman where only one jurisdiction
1.
The Court ignores entirely the threshold inquiry in determining whether a particular
punishment complies with the Eighth Amendment: whether it is one of the modes or acts
of punishment that had been considered cruel
and unusual at the time that the Bill of Rights
was adopted. Ford v. Wainwright, 477 U.S.
399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986). As we have noted in prior cases, the
evidence is unusually clear that the Eighth
Amendment was not originally understood to
prohibit capital punishment for 16 and 17
543 U.S. 608
authorized such punishment. The plurality also observed that [a]t no time in the
last 50 years ha[d] a majority of S 610States
authorized death as a punishment for
rape. Id., at 593, 97 S.Ct. 2861. In Ford
v. Wainwright, 477 U.S. 399, 408, 106 S.Ct.
2595, 91 L.Ed.2d 335 (1986), we held execution of the insane unconstitutional, tracing the roots of this prohibition to the
common law and noting that no State in
the union permits the execution of the
insane. In Enmund v. Florida, 458 U.S.
782, 792, 102 S.Ct. 3368, 73 L.Ed.2d 1140
(1982), we invalidated capital punishment
imposed for participation in a robbery in
which an accomplice committed murder,
because 78% of all death penalty States
prohibited this punishment. Even there
we expressed some hesitation, because the
legislative judgment was neither wholly
unanimous among state legislatures, TTT
nor as compelling as the legislative judgments considered in Coker. Id., at 793,
102 S.Ct. 3368. By contrast, agreement
among 42% of death penalty States in
Stanford, which the Court appears to believe was correctly decided at the time,
ante, at 11971198, was insufficient to
show a national consensus. See Stanford,
supra, at 372, 109 S.Ct. 2969.
In an attempt to keep afloat its implausible assertion of national consensus, the
Court throws overboard a proposition well
established in our Eighth Amendment jurisprudence. It should be observed, the
Court says, that the Stanford Court
yearold offenders. See Stanford v. Kentucky,
492 U.S. 361, 368, 109 S.Ct. 2969, 106
L.Ed.2d 306 (1989). At the time the Eighth
Amendment was adopted, the death penalty
could theoretically be imposed for the crime
of a 7yearold, though there was a rebuttable
presumption of incapacity to commit a capital
(or other) felony until the age of 14. See ibid.
(citing 4 W. Blackstone, Commentaries *23
*24; 1 M. Hale, Pleas of the Crown 2429
(1800)).
543 U.S. 612
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
1219
should have considered those States that

had abandoned the death penalty altogether as part of the consensus against the
juvenile death penalty TTT ; a States decision to bar the death penalty altogether of
necessity demonstrates a judgment that
the death penalty is inappropriate for all
offenders, including juveniles. Ante, at
1198. The insinuation that the Courts
new method of counting contradicts only
the Stanford Court is misleading. None
of our cases dealing with an alleged constitutional limitation upon the death penalty
has counted, as States supporting a consensus in favor of that limitation, States
that have eliminated the death penalty entirely. See Ford, supra, at 408, n. 2, 106
S.Ct. 2595; Enmund, supra, at 789, 102
S.Ct. 3368; Coker, supra, at 594, 97 S.Ct.
2861. And with good reason. Consulting
States that bar the death penalty concerning the necessity of making an exception to
the penSalty611 for offenders under 18 is
rather like including old-order Amishmen
in a consumer-preference poll on the electric car. Of course they dont like it, but
that sheds no light whatever on the point
at issue. That 12 States favor no executions says something about consensus
against the death penalty, but nothing
absolutely nothingabout consensus that
offenders under 18 deserve special immunity from such a penalty. In repealing the
death penalty, those 12 States considered
none of the factors that the Court puts

forth as determinative of the issue before
us todaylower culpability of the young,
inherent recklessness, lack of capacity for
considered judgment, etc. What might be
relevant, perhaps, is how many of those
States permit 16 and 17yearold offenders to be treated as adults with respect to
noncapital offenses. (They all do; 2 indeed, some even require that juveniles as
young as 14 be tried as adults if they are
charged with murder.3) The attempt by
the Court to turn its remarkable minority
consensus into a faux majority by counting
Amishmen is an act of nomological desperation.
See Alaska Stat. 47.12.030 (Lexis 2002);

Haw.Rev.Stat. 57122 (1999); Iowa Code
232.45 (2003); Me.Rev.Stat. Ann., Tit. 15,
3101(4) (West 2003); Mass. Gen. Laws
Ann., ch. 119, 74 (West 2003); Mich. Comp.
Laws Ann. 764.27 (West 2000); Minn.Stat.
260B.125 (2004); N.D. Cent.Code 2720
34 (Lexis Supp.2003); R.I. Gen. Laws 14
17 (Lexis 2002); Vt. Stat. Ann., Tit. 33,
5516 (Lexis 2001); W. Va.Code 49510
(Lexis 2004); Wis. Stat. 938.18 (2003
2004); see also National Center for Juvenile
Justice, Trying and Sentencing Juveniles as
Adults: An Analysis of State Transfer and
Blended Sentencing Laws 1 (Oct.2003). The
District of Columbia is the only jurisdiction

without a death penalty that specifically exempts under18 offenders from its harshest
sanctionlife imprisonment without parole.
See D.C.Code 222104 (West 2001).
2.
Recognizing that its national-consensus

argument was weak compared with our
earlier cases, the Atkins Court found additional support in the fact that 16 States
had prohibited execution of mentally retarded individuals since S 612Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989). Atkins, 536 U.S., at
314316, 122 S.Ct. 2242. Indeed, the Atkins Court distinguished Stanford on that
very ground, explaining that [a]lthough
we decided Stanford on the same day as
Penry, apparently only two state legislatures have raised the threshold age for
imposition of the death penalty. 536
U.S., at 315, n. 18, 122 S.Ct. 2242 (emphasis added). Now, the Court says a legislative change in four States is significant
enough to trigger a constitutional prohibition.4 Ante, at 1193. It is amazing to
3.
See Mass. Gen. Laws Ann., ch. 119, 74

(West 2003); N.D. Cent.Code 272034
(Lexis Supp.2003); W. Va.Code 49510
(Lexis 2004).
4.
As the Court notes, Washington States decision to prohibit executions of offenders under
18 was made by a judicial, not legislative,
decision. State v. Furman, 122 Wash.2d 440,
1220
think that this subtle shift in numbers can

take the issue entirely off the table for
legislative debate.
suggested that the practice had become

a relic, implicitly rejected by a new societal consensusTTTT We now know that
any inference of a societal consensus
rejecting the death penalty would have
been mistaken. But had this Court then
declared the existence of such a consensus, and outlawed capital punishment,
legislatures would very likely not have
been able to revive it. The mistaken
premise of the decision would have been
frozen into constitutional law, making it
difficult to refute and even more difficult
to reject. Thompson v. Oklahoma, 487
U.S. 815, 854855, 108 S.Ct. 2687, 101
L.Ed.2d 702 (1988) (opinion concurring
in judgment).
I also doubt whether many of the legislators who voted to change the laws in
those four States would have done so if
they had known their decision would (by
the pronouncement of this Court) be rendered irreversible. After all, legislative
support for capital punishment, in any
form, has surged and ebbed throughout
our Nations history. As Justice OCONNOR has explained:
The history of the death penalty instructs that there is danger in inferring
a settled societal consensus from statistics like those relied on in this case. In
1846, Michigan became the first State to
abolish the death penalty TTT. In succeeding decades, other American States
continued the trend towards abolition
TTT. Later, and particularly after World
War II, there ensued a steady and dramatic decline in executions TTT. In the
1950s and 1960s, more States abolished
or radically restricted capital punishment, and executions ceased completely
for several years beginning in 1968TTTT
5.
543 U.S. 612
S 613In 1972, when this Court heard

arguments on the constitutionality of the
death penalty, such statistics might have
Relying on such narrow margins is especially inappropriate in light of the fact that
a number of legislatures and voters have
expressly affirmed their support for capital
punishment of 16 and 17yearold offenders since Stanford. Though the Court is
correct that no State has lowered its death
penalty age, both the Missouri and Virginia Legislatureswhich, at the time of
Stanford, had no minimum age requirementexpressly established 16 as the
minimum.
Mo.Rev.Stat.
565.020.2
(2000); Va.Code Ann. 18.210(a) (Lexis
2004). The people of Arizona 5 and Florida 6 have S 614done the same by ballot initia-
459, 858 P.2d 1092, 1103 (1993), construed

the States death penalty statutewhich did
not set any age limitto apply only to persons
over 18. The opinion found that construction
necessary to avoid what it considered constitutional difficulties, and did not purport to
reflect popular sentiment. It is irrelevant to
the question of changed national consensus.
degree murder. Ariz.Rev.Stat. Ann. 13

501 (West 2001). The Arizona Supreme
Court has added to this scheme a constitutional requirement that there be an individualized assessment of the juveniles maturity at
the time of the offense. See State v. Davolt,
207 Ariz. 191, 214216, 84 P.3d 456, 479481
(2004).
In 1996, Arizonas Ballot Proposition 102

exposed under18 murderers to the death
penalty by automatically transferring them
out of juvenile courts. The statute implementing the proposition required the county
attorney to bring a criminal prosecution
against a juvenile in the same manner as an
adult if the juvenile is fifteen, sixteen or seventeen years of age and is accused of TTT first
6.
Florida voters approved an amendment to

the State Constitution, which changed the
wording from cruel or unusual to cruel
and unusual, Fla. Const., Art. I, 17 (2003).
See Commentary to 1998 Amendment, 25B
Fla. Stat. Ann., p. 180 (West 2004). This was
a response to a Florida Supreme Court ruling
that cruel or unusual excluded the death
penalty for a defendant who committed mur-
543 U.S. 615
1221
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
tive. Thus, even States that have not executed an under18 offender in recent years
unquestionably favor the possibility of capital punishment in some circumstances.
The Courts reliance on the infrequency
of executions for under18 murderers,
ante, at 11921193, 1194, credits an argument that this Court considered and explicitly rejected in Stanford. That infrequency is explained, we accurately said,
both by the undisputed fact that a far
smaller percentage of capital crimes are
committed by persons under 18 than over
18, 492 U.S., at 374, 109 S.Ct. 2969, and
by the fact that juries are required at
sentencing to consider the offenders youth
as a mitigating factor, see Eddings v.
Oklahoma, 455 U.S. 104, 115116, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982). Thus, it is
not only possible, but overwhelmingly
probable, that the very considerations
which induce [respondent] and [his] supporters to believe that death should never
be imposed on offenders under 18 cause
prosecutors and juries to believe that it
should rarely be imposed. Stanford, supra, at 374, 109 S.Ct. 2969.
It is, furthermore, unclear that executions of the relevant age group have decreased since we decided Stanford. Between 1990 and 2003, 123 of 3,599 death
sentences, or 3.4%, were given to individuals who committed crimes before reaching
age 18. V. Streib, The Juvenile Death
Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1,
1973September 30, 2004, No. 75, p. 9
(Table 3) (last updated Oct. 5, 2004), http://
www.law.onu.edu/faculty/streib/documents/
JuvDeathSept302004.pdf (all Internet materials as visited Jan. 12, 2005, and availder when he was younger than 17. See Brennan v. State, 754 So.2d 1, 5 (1999). By
adopting the federal constitutional language,
Florida voters effectively adopted our decision in Stanford v. Kentucky, 492 U.S. 361,
able in Clerk of Courts case file) (hereinafter Juvenile Death Penalty Today).
S 615By contrast, only 2.1% of those sentenced to death between 1982 and 1988
committed the crimes when they were under 18. See Stanford, supra, at 373, 109
S.Ct. 2969 (citing V. Streib, Imposition of
Death Sentences for Juvenile Offenses,
January 1, 1982, Through April 1, 1989, p.
2 (paper for ClevelandMarshall College of
Law, April 5, 1989)). As for actual executions of under18 offenders, they constituted 2.4% of the total executions since 1973.
Juvenile Death Penalty Today 4. In Stanford, we noted that only 2% of the executions between 1642 and 1986 were of under18 offenders and found that that lower
number did not demonstrate a national
consensus against the penalty. 492 U.S.,
at 373374, 109 S.Ct. 2969 (citing V. Streib,
Death Penalty for Juveniles 55, 57 (1987)).
Thus, the numbers of under18 offenders
subjected to the death penalty, though low
compared with adults, have either held
steady or slightly increased since Stanford.
These statistics in no way support the
action the Court takes today.
II
Of course, the real force driving todays
decision is not the actions of four state
legislatures, but the Courts own judgment that murderers younger than 18
can never be as morally culpable as older
counterparts. Ante, at 11911192 (quoting
Atkins, 536 U.S., at 312, 122 S.Ct. 2242 (in
turn quoting Coker, 433 U.S., at 597, 97
S.Ct. 2861 (plurality opinion))). The Court
claims that this usurpation of the role of
moral arbiter is simply a retur[n] to the
rul[e] established in decisions predating
Stanford, ante, at 1191. That supposed
109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). See
Weaver, Word May Allow Execution of 16
YearOlds, Miami Herald, Nov. 7, 2002, p.
7B.
1222
rulewhich is reflected solely in dicta and

never once in a holding that purports to
supplant the consensus of the American
people with the Justices views 7was repudiated in Stanford for the very good
reaSson616 that it has no foundation in law
or logic. If the Eighth Amendment set
forth an ordinary rule of law, it would
indeed be the role of this Court to say
what the law is. But the Court having
pronounced that the Eighth Amendment is
an ever-changing reflection of the evolving standards of decency of our society, it
makes no sense for the Justices then to
prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this
Court is to identify a moral consensus of
the American people. By what conceivable warrant can nine lawyers presume to
be the authoritative conscience of the Nation? 8
543 U.S. 615
sentencing juries: Juries maintain a link

between contemporary community values
and the penal system that this Court
cannot claim for itself. Gregg, supra, at
181, 96 S.Ct. 2909 (quoting Witherspoon v.
Illinois, 391 U.S. 510, 519, n. 15, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968)).
Todays opinion provides a perfect example of why judges are ill equipped to make
the type of legislative judgments the Court
insists on making here. To support its
opinion that States should be prohibited
from imposing the death S 617penalty on
anyone who committed murder before age
18, the Court looks to scientific and sociological studies, picking and choosing those
that support its position. It never explains
why those particular studies are methodologically sound; none was ever entered
into evidence or tested in an adversarial
proceeding. As THE CHIEF JUSTICE
has explained:
The reason for insistence on legislative

primacy is obvious and fundamental:
[I]n a democratic society legislatures,
not courts, are constituted to respond to
the will and consequently the moral values
of the people. Gregg v. Georgia, 428
U.S. 153, 175176, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting
Furman v. Georgia, 408 U.S. 238, 383, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger,
C. J., dissenting)). For a similar reason
we have, in our determination of societys
moral standards, consulted the practices of
[M]ethodological and other errors can

affect the reliability and validity of estimates about the opinions and attitudes
of a population derived from various
sampling techniques. Everything from
variations in the survey methodology,
such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses
used to interpret the data can skew the
results. Atkins, supra, at 326327, 122
S.Ct. 2242 (dissenting opinion) (citing R.
Groves, Survey Errors and Survey
7.
See, e.g., Enmund v. Florida, 458 U.S. 782,

801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)
([W]e have no reason to disagree with th[e]
judgment [of the state legislatures] for purposes of construing and applying the Eighth
Amendment); Coker v. Georgia, 433 U.S.
584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982
(1977) (plurality opinion) ([T]he legislative
rejection of capital punishment for rape
strongly confirms our own judgment).
at 12101212 (dissenting opinion). She is

nonetheless prepared (like the majority) to
override the judgment of Americas legislatures if it contradicts her own assessment of
moral proportionality, ante, at 1212. She
dissents here only because it does not. The
votes in todays case demonstrate that the
offending of selected lawyers moral sentiments is not a predictable basis for law
much less a democratic one.
8.
Justice OCONNOR agrees with our analysis

that no national consensus exists here, ante,
543 U.S. 619
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
Costs (1989); 1 C. Turner & E. Martin,

Surveying
Subjective
Phenomena
(1984)).
In other words, all the Court has done
today, to borrow from another context, is
to look over the heads of the crowd and
pick out its friends. Cf. Conroy v. Aniskoff, 507 U.S. 511, 519, 113 S.Ct. 1562, 123
L.Ed.2d 229 (1993) (SCALIA, J., concurring in judgment).
We need not look far to find studies
contradicting the Courts conclusions. As
petitioner points out, the American Psychological Association (APA), which claims
in this case that scientific evidence shows
persons under 18 lack the ability to take
moral responsibility for their decisions, has
previously taken precisely the opposite position before this very Court. In its brief
in Hodgson v. Minnesota, 497 U.S. 417,
110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), the
APA found a rich body of research showing that juveniles are mature enough to
decide whether to obtain an abortion without parental involvement. Brief for APA
as Amicus Curiae, O.T.1989, No. 88805
etc., p. 18. The APA brief, citing psychology treatises and studies too numerous to
list here, asserted: [B]y middle adolescence (age 1415) young people develop
abilities similar to adults in reasoning
S 618about moral dilemmas, understanding
social rules and laws, [and] reasoning
about interpersonal relationships and interpersonal problems. Id., at 1920 (citations omitted). Given the nuances of scientific methodology and conflicting views,
courtswhich can only consider the limited evidence on the record before them
are ill equipped to determine which view of
science is the right one. Legislatures are
better qualified to weigh and evaluate the
results of statistical studies in terms of
their own local conditions and with a flexibility of approach that is not available to
the courts. McCleskey v. Kemp, 481
U.S. 279, 319, 107 S.Ct. 1756, 95 L.Ed.2d
1223
262 (1987) (quoting Gregg, supra, at 186,

96 S.Ct. 2909).
Even putting aside questions of methodology, the studies cited by the Court offer
scant support for a categorical prohibition
of the death penalty for murderers under
18. At most, these studies conclude that,
on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the
cited studies opines that all individuals under 18 are unable to appreciate the nature
of their crimes.
Moreover, the cited studies describe
only adolescents who engage in risky or
antisocial behavior, as many young people
do. Murder, however, is more than just
risky or antisocial behavior. It is entirely
consistent to believe that young people
often act impetuously and lack judgment,
but, at the same time, to believe that those
who commit premeditated murder areat
least sometimesjust as culpable as
adults. Christopher Simmons, who was
only seven months shy of his 18th birthday
when he murdered Shirley Crook, described to his friends beforehand[i]n
chilling, callous terms, as the Court puts
it, ante, at 1187the murder he planned
to commit. He then broke into the home
of an innocent woman, bound her with duct
tape and electrical wire, and threw her off
a bridge alive and conscious. Ante, at
1188. In their amici brief, the States of
Alabama, Delaware, Oklahoma, Texas,
Utah, and Virginia offer additional
examSples619 of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17year
olds, one 16yearold, and one 19yearold
picked up a female hitchhiker, threw bottles at her, and kicked and stomped her
for approximately 30 minutes until she
died. They then sexually assaulted her
lifeless body and, when they were finished,
1224
threw her body off a cliff. They later

returned to the crime scene to mutilate
her corpse. See Brief for Alabama et al.
as Amici Curiae 910; see also Loggins v.
State, 771 So.2d 1070, 10741075 (Ala.
Crim.App.1999); Duncan v. State, 827
So.2d 838, 840841 (Ala.Crim.App.1999).
Other examples in the brief are equally
shocking. Though these cases are assuredly the exception rather than the rule,
the studies the Court cites in no way justify a constitutional imperative that prevents
legislatures and juries from treating exceptional cases in an exceptional wayby
determining that some murders are not
just the acts of happy-go-lucky teenagers,
but heinous crimes deserving of death.
That almost every State prohibits those
under 18 years of age from voting, serving
on juries, or marrying without parental
consent, ante, at 1195, is patently irrelevantand is yet another resurrection of
an argument that this Court gave a decent
burial in Stanford. (What kind of Equal
Justice under Law is it thatwithout so
much as a Sorry about thatgives as
the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained
in Stanford, 492 U.S., at 374, 109 S.Ct.
2969, it is absurd to think that one must
be mature enough to drive carefully, to
drink responsibly, or to vote intelligently,
in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform
ones conduct to that most minimal of all
civilized standards. Serving on a jury or
entering into marriage also involve decisions far more sophisticated than the simple decision not to take anothers life.
S 620Moreover, the age statutes the Court
lists set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct
individualized maturity tests. Ibid. The
543 U.S. 619
criminal justice system, by contrast, provides for individualized consideration of

each defendant. In capital cases, this
Court requires the sentencer to make an
individualized determination, which includes weighing aggravating factors and
mitigating factors, such as youth. See Eddings, 455 U.S., at 115117, 102 S.Ct. 869.
In other contexts where individualized consideration is provided, we have recognized
that at least some minors will be mature
enough to make difficult decisions that involve moral considerations. For instance,
we have struck down abortion statutes
that do not allow minors deemed mature
by courts to bypass parental notification
provisions. See, e.g., Bellotti v. Baird, 443
U.S. 622, 643644, 99 S.Ct. 3035, 61
L.Ed.2d 797 (1979) (opinion of Powell, J.);
Planned Parenthood of Central Mo. v.
Danforth, 428 U.S. 52, 7475, 96 S.Ct.
2831, 49 L.Ed.2d 788 (1976). It is hard to
see why this context should be any different. Whether to obtain an abortion is
surely a much more complex decision for a
young person than whether to kill an innocent person in cold blood.
The Court concludes, however, ante, at
11961197, that juries cannot be trusted
with the delicate task of weighing a defendants youth along with the other mitigating and aggravating factors of his crime.
This startling conclusion undermines the
very foundations of our capital sentencing
system, which entrusts juries with
mak[ing] the difficult and uniquely human
judgments that defy codification and that
buil[d] discretion, equity, and flexibility
into a legal system. McCleskey, supra,
at 311, 107 S.Ct. 1756 (quoting H. Kalven
& H. Zeisel, The American Jury 498
(1966)). The Court says, ante, at 1197,
that juries will be unable to appreciate the
significance of a defendants youth when
faced with details of a brutal crime. This
assertion is based on no evidence; to the
contrary, the Court itself acknowledges
543 U.S. 622
1225
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
that the execution of under18 offenders is

infrequent even in the States withSout621
a formal prohibition on executing juveniles, ante, at 1192, suggesting that juries
take seriously their responsibility to weigh
youth as a mitigating factor.
Nor does the Court suggest a stopping
point for its reasoning. If juries cannot
make appropriate determinations in cases
involving murderers under 18, in what other kinds of cases will the Court find jurors
deficient? We have already held that no
jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. See Atkins,
536 U.S., at 321, 122 S.Ct. 2242. Why not
take other mitigating factors, such as considerations of childhood abuse or poverty,
away from juries as well? Surely jurors
overpower[ed] by the brutality or coldblooded nature of a crime, ante, at 1197,
could not adequately weigh these mitigating factors either.
The Courts contention that the goals of
retribution and deterrence are not served
by executing murderers under 18 is also
transparently false. The argument that
[r]etribution is not proportional if the
laws most severe penalty is imposed on
one whose culpability or blameworthiness
is diminished, ante, at 1196, is simply an
extension of the earlier, false generalization that youth always defeats culpability.
The Court claims that juveniles will be
less susceptible to deterrence, ibid., because [t]he 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, ibid. (quoting
Thompson, 487 U.S., at 837, 108 S.Ct.
2687). The Court unsurprisingly finds no
support for this astounding proposition,
save its own case law. The facts of this
very case show the proposition to be false.
Before committing the crime, Simmons en-
couraged his friends to join him by assuring them that they could get away with
it because they were minors. State ex
rel. Simmons v. Roper, 112 S.W.3d 397,
419 (Mo.2003) (Price, J., dissenting). This
fact may have influenced the jurys decision to impose capital punishment despite
Simmons age. S 622Because the Court refuses to entertain the possibility that its
own unsubstantiated generalization about
juveniles could be wrong, it ignores this
evidence entirely.
III
Though the views of our own citizens are
essentially irrelevant to the Courts decision today, the views of other countries
and the so-called international community
take center stage.
The Court begins by noting that Article
37 of the United Nations Convention on
the Rights of the Child, [1577 U.N.T.S. 3,
28 I.L.M. 1448, 14681470, entered into
force Sept. 2, 1990,] which every country in
the world has ratified save for the United
States and Somalia, contains an express
prohibition on capital punishment for
crimes committed by juveniles under 18.
Ante, at 1199 (emphasis added). The
Court also discusses the International Covenant on Civil and Political Rights
(ICCPR), December 19, 1966, 999 U.N.T.S.
175, ante, at 1194, 1199, which the Senate
ratified only subject to a reservation that
reads:
The United States reserves the right,
subject to its Constitutional constraints,
to impose capital punishment on any
person (other than a pregnant woman)
duly convicted under existing or future
laws permitting the imposition of capital
punishment, including such punishment
for crimes committed by persons below
eighteen years of age. Senate Committee on Foreign Relations, International
1226
Covenant on Civil and Political Rights,

S. Exec. Rep. No. 10223, p. 11 (1992).
Unless the Court has added to its arsenal
the power to join and ratify treaties on
behalf of the United States, I cannot see
how this evidence favors, rather than refutes, its position. That the Senate and
the Presidentthose actors our Constitution empowers to enter into treaties, see
Art. II, 2have declined to join and
ratify treaties prohibiting S 623execution of
under18 offenders can only suggest that
our country has either not reached a national consensus on the question, or has
reached a consensus contrary to what the
Court announces. That the reservation to
the ICCPR was made in 1992 does not
suggest otherwise, since the reservation
still remains in place today. It is also
worth noting that, in addition to barring
the execution of under18 offenders, the
United Nations Convention on the Rights
of the Child prohibits punishing them with
life in prison without the possibility of
release. If we are truly going to get in
line with the international community, then
the Courts reassurance that the death
penalty is really not needed, since the
punishment of life imprisonment without
the possibility of parole is itself a severe
sanction, ante, at 1196, gives little comfort.
It is interesting that whereas the Court
is not content to accept what the States of
our Federal Union say, but insists on inquiring into what they do (specifically,
whether they in fact apply the juvenile
death penalty that their laws allow), the
Court is quite willing to believe that every
foreign nationof whatever tyrannical political makeup and with however subservient or incompetent a court systemin
fact adheres to a rule of no death penalty
for offenders under 18. Nor does the
Court inquire into how many of the countries that have the death penalty, but have
forsworn (on paper at least) imposing that
penalty on offenders under 18, have what
543 U.S. 622
no State of this country can constitutionally have: a mandatory death penalty for
certain crimes, with no possibility of mitigation by the sentencing authority, for
youth or any other reason. I suspect it is
most of them. See, e.g., R. Simon & D.
Blaskovich, A Comparative Analysis of
Capital Punishment: Statutes, Policies,
Frequencies, and Public Attitudes the
World Over 25, 26, 29 (2002). To forbid
the death penalty for juveniles under such
a system may be a good idea, but it says
nothing about our system, in which the
sentencing authority, typically a jury, always can, and almost S 624always does, withhold the death penalty from an under18
offender except, after considering all the
circumstances, in the rare cases where it is
warranted. The foreign authorities, in
other words, do not even speak to the
issue before us here.
More fundamentally, however, the basic
premise of the Courts argumentthat
American law should conform to the laws
of the rest of the worldought to be rejected out of hand. In fact the Court itself
does not believe it. In many significant
respects the laws of most other countries
differ from our lawincluding not only
such explicit provisions of our Constitution
as the right to jury trial and grand jury
indictment, but even many interpretations
of the Constitution prescribed by this
Court itself. The Court-pronounced exclusionary rule, for example, is distinctively
American. When we adopted that rule in
Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961), it was unique
to American jurisprudence. Bivens v.
Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 415, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971) (Burger, C. J., dissenting).
Since then a categorical exclusionary rule
has been universally rejected by other
countries, including those with rules prohibiting illegal searches and police miscon-
543 U.S. 626
ROPER v. SIMMONS
Cite as 125 S.Ct. 1183 (2005)
duct, despite the fact that none of these

countries appears to have any alternative
form of discipline for police that is effective in preventing search violations.
Bradley, Mapp Goes Abroad, 52 Case W.
Res. L.Rev. 375, 399400 (2001). England,
for example, rarely excludes evidence
found during an illegal search or seizure
and has only recently begun excluding evidence from illegally obtained confessions.
See C. Slobogin, Criminal Procedure:
Regulation of Police Investigation 550 (3d
ed.2002). Canada rarely excludes evidence
and will only do so if admission will bring
the administration of justice into disrepute. Id., at 550551 (internal quotation
marks omitted). The European Court of
Human Rights has held that introduction
of illegally seized evidence does not violate
the fair trial requirement in Article 6,
1, of the European Convention on
S 625Human Rights. See Slobogin, supra, at
551; Bradley, supra, at 377378.
The Court has been oblivious to the
views of other countries when deciding
how to interpret our Constitutions requirement that Congress shall make no
law respecting an establishment of religionTTTT Amdt. 1. Most other countriesincluding those committed to religious neutralitydo not insist on the
degree of separation between church and
state that this Court requires. For example, whereas we have recognized
special Establishment Clause dangers
where the government makes direct
money payments to sectarian institutions, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 842,
115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)
(citing cases), countries such as the
Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that the
state can only be truly neutral between
secular and religious perspectives if it
does not dominate the provision of so
1227
key a service as education, and makes it

possible for people to exercise their
right of religious expression within the
context of public funding. S. Monsma
& J. Soper, The Challenge of Pluralism:
Church and State in Five Democracies
207 (1997); see also id., at 67, 103, 176.
England permits the teaching of religion
in state schools. Id., at 142. Even in
France, which is considered Americas
only rival in strictness of church-state
separation, [t]he practice of contracting
for educational services provided by
Catholic schools is very widespread. C.
Glenn, The Ambiguous Embrace: Government and FaithBased Schools and
Social Agencies 110 (2000).
And let us not forget the Courts abortion jurisprudence, which makes us one of
only six countries that allow abortion on
demand until the point of viability. See
Larsen, Importing Constitutional Norms
from a Wider Civilization: Lawrence and
the Rehnquist Courts Use of Foreign and
International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283,
1320 (2004); Center for ReproducStive626
Rights, The Worlds Abortion Laws (June
2004), http://www.reproductiverights.org/
pub fac abortion laws.html. Though the
Government and amici in cases following
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973), urged the Court to
follow the international communitys lead,
these arguments fell on deaf ears. See
McCrudden, A Part of the Main? The PhysicianAssisted Suicide Cases and Comparative Law Methodology in the United
States Supreme Court, in Law at the End
of Life: The Supreme Court and Assisted
Suicide 125, 129130 (C. Schneider
ed.2000).
The Courts special reliance on the laws
of the United Kingdom is perhaps the
most indefensible part of its opinion. It is
of course true that we share a common
history with the United Kingdom, and that
we often consult English sources when
1228
543 U.S. 626
cal, and social culture quite different from

our own. If we took the Courts directive
seriously, we would also consider relaxing
our double jeopardy prohibition, since the
British Law Commission recently published a report that would significantly extend
the rights of the prosecution to appeal
cases where an acquittal was the result of
a judges ruling that was legally incorrect.
See Law Commission, Double Jeopardy
and Prosecution Appeals, LAW COM No.
267, Cm 5048, p. 6, 1.19 (Mar.2001); J.
Spencer, The English System in European
Criminal Procedures 142, 204, and n. 239
(M. DelmasMarty & J. Spencer eds.2002).
We would also curtail our right to jury
trial in criminal cases since, despite the
jury systems deep roots in our shared
common law, England now permits all but
the most serious offenders to be tried by
magistrates without a jury. See D. Feldman, England and Wales, in Criminal Procedure: A Worldwide Study 91, 114115
(C. Bradley ed.1999).
asked to discern the meaning of a constitutional text written against the backdrop of
18th-century English law and legal
thought. If we applied that approach today, our task would be an easy one. As
we explained in Harmelin v. Michigan,
501 U.S. 957, 973974, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991), the Cruell and Unusuall Punishments provision of the English
Declaration of Rights was originally meant
to describe those punishments out of
[the Judges] Power that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the
Crowns judges. Under that reasoning,
the death penalty for under18 offenders
would easily survive this challenge. The
Court has, howeverI think wrongly
long rejected a purely originalist approach
to our Eighth Amendment, and that is
certainly not the approach the Court takes
today. Instead, the Court undertakes the
majestic task of determining (and thereby
prescribing) our Nations current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in
the centuries since the Revolutionary
Warand with increasing speed since the
United Kingdoms recent submission to the
jurisprudence of European courts dominated by continental S 627juristsa legal, politi-
The Court should either profess its willingness to reconsider all these matters in
light of the views of foreigners, or else it
should cease putting forth foreigners
views as part of the reasoned basis of its
decisions. To invoke alien law when it
agrees with ones own thinking, and ignore
it otherwise, is not reasoned decisionmaking, but sophistry.9
Justice OCONNOR asserts that the Eighth

Amendment has a special character, in that
it draws its meaning directly from the maturing values of civilized society. Ante, at
1215. Nothing in the text reflects such a
distinctive characterand we have certainly
applied the maturing values rationale to
give brave new meaning to other provisions of
the Constitution, such as the Due Process
Clause and the Equal Protection Clause. See,
e.g., Lawrence v. Texas, 539 U.S. 558, 571
573, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003);
United States v. Virginia, 518 U.S. 515, 532
534, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996);
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847850, 112 S.Ct. 2791,
120 L.Ed.2d 674 (1992). Justice OCONNOR

asserts that an international consensus can at
least serve to confirm the reasonableness of
a consonant and genuine American consensus. Ante, at 1216. Surely not unless it can
also demonstrate the unreasonableness of
such a consensus. Either Americas principles are its own, or they follow the world;
one cannot have it both ways. Finally, Justice OCONNOR finds it unnecessary to consult foreign law in the present case because
there is no TTT domestic consensus to be
confirmed. Ibid. But since she believes that
the Justices can announce their own requirements of moral proportionality despite the
absence of consensus, why would foreign law
9.
ROPER v. SIMMONS
543 U.S. 629
Cite as 125 S.Ct. 1183 (2005)
S 628The Court responds that [i]t does

not lessen our fidelity to the Constitution
or our pride in its origins to acknowledge
that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of
those same rights within our own heritage
of freedom. Ante, at 1200. To begin
with, I do not believe that approval by
other nations and peoples should buttress our commitment to American principles any more than (what should logically
follow) disapproval by other nations and
peoples should weaken that commitment.
More importantly, however, the Courts
statement flatly misdescribes what is going
on here. Foreign sources are cited today,
not to underscore our fidelity to the
Constitution, our pride in its origins, and
our own [American] heritage. To the
contrary, they are cited to set aside the
centuries-old American practicea practice still engaged in by a large majority of
the relevant Statesof letting a jury of 12
citizens decide whether, in the particular
case, youth should be the basis for withholding the death penalty. What these
foreign sources affirm, rather than repudiate, is the Justices own notion of how
the world ought to be, and their diktat that
it shall be so henceforth in America. The
Courts parting attempt to downplay the
significance of its extensive discussion of
foreign law is unconvincing. Acknowledgment of foreign approval has no place
in the legal opinion of this Court unless it
is part of the basis for the Courts judgmentwhich is surely what it parades as
today.
IV
To add insult to injury, the Court affirms the Missouri Supreme Court without
not be relevant to that judgment? If foreign
law is powerful enough to supplant the judgment of the American people, surely it is
1229
even admonishing that court for its

S 629flagrant disregard of our precedent in
Stanford. Until today, we have always
held that it is this Courts prerogative
alone to overrule one of its precedents.
State Oil Co. v. Khan, 522 U.S. 3, 20, 118
S.Ct. 275, 139 L.Ed.2d 199 (1997). That
has been true even where changes in
judicial doctrine ha[ve] significantly undermined our prior holding, United States
v. Hatter, 532 U.S. 557, 567, 121 S.Ct.
1782, 149 L.Ed.2d 820 (2001) (quoting Hatter v. United States, 64 F.3d 647, 650
(C.A.Fed.1995)), and even where our prior
holding appears to rest on reasons rejected in some other line of decisions, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct.
1917, 104 L.Ed.2d 526 (1989). Today, however, the Court silently approves a statecourt decision that blatantly rejected controlling precedent.
One must admit that the Missouri Supreme Courts action, and this Courts
indulgent reaction, are, in a way, understandable. In a system based upon
constitutional and statutory text democratically adopted, the concept of law
ordinarily signifies that particular words
have a fixed meaning. Such law does
not change, and this Courts pronouncement of it therefore remains authoritative until (confessing our prior error)
we overrule. The Court has purported
to make of the Eighth Amendment,
however, a mirror of the passing and
changing sentiment of American society
regarding penology. The lower courts
can look into that mirror as well as we
can; and what we saw 15 years ago
bears no necessary relationship to what
they see today. Since they are not
looking at the same text, but at a difpowerful enough to change a personal assessment of moral proportionality.
1230
ferent scene, why should our earlier decision control their judgment?
However sound philosophically, this is
no way to run a legal system. We must
disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of
hands on the current Justices current personal views about penology, they purport
to be nothing more than a snapshot of
American public opinion at a particular
point in time (with the timeframes now
shortened to a mere 15 years). We must
treat these deciSsions630 just as though they
represented real law, real prescriptions
democratically adopted by the American
people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the
Eighth Amendment whenever they decide
enough time has passed for a new snapshot leaves this Courts decisions without
any forceespecially since the evolution
of our Eighth Amendment is no longer
determined by objective criteria. To allow
lower courts to behave as we do, updating the Eighth Amendment as needed,
destroys stability and makes our case law
an unreliable basis for the designing of
laws by citizens and their representatives,
and for action by public officials. The
result will be to crown arbitrariness with
chaos.
543 U.S. 629
544 U.S. 1, 161 L.Ed.2d 82
George J. TENET, Individually, Porter

J. Goss, Director of Central Intelligence and Director of the Central Intelligence Agency, and United States,
Petitioners,
v.
John DOE, et ux.
No. 031395.
Argued Jan. 11, 2005.
Background: Two foreign nationals who
allegedly performed espionage activities in
their native country on behalf of the United States during the Cold War before being admitted to the U.S., filed suit against
the Central Intelligence Agency (CIA), alleging that, by reneging on its obligation to
provide them with financial and other support, the CIA violated their equal protection and due process rights. The United
States District Court for the Western District of Washington, Lasnik, J., 99
F.Supp.2d 1284, denied in part the governments motion to dismiss, and the government appealed. The Ninth Circuit Court of
Appeals, Canby, Circuit Judge, 329 F.3d
1135, affirmed in relevant part, and, over
dissent, subsequently denied a petition for
rehearing en banc, 353 F.3d 1141. The
governments petition for a writ of certiorari was granted.
Holding: The United States Supreme
Court, Chief Justice Rehnquist, held that
the alleged spies claims were barred by
the longstanding rule announced by the
Court in Totten v. United States, prohibiting suits against the government based on
covert espionage agreements.
Reversed.
Justice Stevens filed a concurring opinion
in which Justice Ginsburg joined.
Justice Scalia filed a concurring opinion.
REVIEW
Mental Disorders Among Adolescents in Juvenile

Detention and Correctional Facilities: A Systematic
Review and Metaregression Analysis of 25 Surveys
SEENA FAZEL, M.R.C.PSYCH., M.D., HELEN DOLL, M.SC., D.PHIL.,
M, M.D., PH.D.
AND NIKLAS LNGSTRO
ABSTRACT
Objective: To systematically review and perform a meta-analysis of the research literature on the prevalence of mental
disorders in adolescents in juvenile detention and correctional facilities. Method: Surveys of psychiatric morbidity based
on interviews of unselected populations of detained children and adolescents were identified by computer-assisted
searches, scanning of reference lists, hand-searching of journals, and correspondence with authors of relevant reports.
The sex-specific prevalence of mental disorders (psychotic illness, major depression, attention-deficit/hyperactivity
disorder [ADHD], and conduct disorder) together with potentially moderating study characteristics were abstracted from
publications. Statistical analysis involved metaregression to identify possible causes of differences in disorder prevalence
across surveys. Results: Twenty-five surveys involving 13,778 boys and 2,972 girls (mean age 15.6 years, range 10Y19
years) met inclusion criteria. Among boys, 3.3% (95% confidence interval [CI] 3.0%Y3.6%) were diagnosed with psychotic
illness, 10.6% (7.3%Y13.9%) with major depression, 11.7% (4.1%Y19.2%) with ADHD, and 52.8% (40.9%Y64.7%) with
conduct disorder. Among girls, 2.7% (2.0%Y3.4%) were diagnosed with psychotic illness, 29.2% (21.9%Y36.5%) with
major depression, 18.5% (9.3%Y27.7%) with ADHD, and 52.8% (32.4%Y73.2%) with conduct disorder. Metaregression
suggested that surveys using the Diagnostic Interview Schedule for Children yielded lower prevalence estimates for
depression, ADHD, and conduct disorder, whereas studies with psychiatrists acting as interviewers had lower prevalence
estimates only of depression. Conclusions: Adolescents in detention and correctional facilities were about 10 times
more likely to suffer from psychosis than the general adolescent population. Girls were more often diagnosed with major
depression than were boys, contrary to findings from adult prisoners and general population surveys. The findings have
implications for the provision of psychiatric services for adolescents in detention. J. Am. Acad. Child Adolesc. Psychiatry,
2008;47(9):1010Y1019. Key Words: detention, criminal justice, psychosis, systematic review.
Accepted April 18, 2008.

Dr. Fazel is with the Department of Psychiatry and Dr. Doll is with the
Department of Public Health and Primary Care, University of Oxford; Dr.
Lngstrom is with the Center for Violence Prevention, Karolinska Institutet.
This work was in part supported by a grant from the Swedish Research
Council-Medicine (N.L.). The authors are grateful to the following investigators
who kindly provided additional information from their studies: P. Chitsabesan,
C. Duclos, R. Feinstein, P. Kirkish, D. Shelton, N. Singleton, A. Robertson,
V. Ruchkin, E. Trupin, C. Vreugdenhil, D. Waite, and R. Zabel.
Article Plus (online-only) materials for this article appear on the Journals Web
site: www.jaacap.com.
Correspondence to Dr. Seena Fazel, Department of Psychiatry, University of
Oxford, Warneford Hospital, Oxford OX3 7JX, UK; e-mail: seena.fazel@
psych.ox.ac.uk.
0890-8567/08/4709-1010*2008 by the American Academy of Child and
Adolescent Psychiatry.
DOI: 10.1097/CHI.0b013e31817eecf3
1010
WWW.JAACAP.COM
Adolescents younger than 19 years constitute 5% of

all those detained in custody in Western countries,
including about 100,000 individuals in the United
States.1 They are usually detained in separate closed
facilities or prisons. High prevalence of both undiagnosed and untreated physical and mental health
problems have been reported,2,3 with current mental
disorders estimated to affect 40% to 70% of the adolescents who come into contact with the justice system.4
Deliberate self-harm and repeat offending are common,5,6 and some of these disorders, such as substance
misuse and conduct disorder, are risk factors for criminal
recidivism.7 In the United States and the United
J. AM. A CAD. C HILD AD OLESC. PSYCHIATRY, 47:9, SE PTEMBE R 2008
MENTAL DISORDERS AMONG ADOLESCENTS IN DETENTION
Kingdom, it has been argued that there is insufficient

screening for mental disorders, that sentencing does not
account for mental health issues, and that custodial and
secure facilities lack qualified staff and appropriate
treatment.8,9
Although there have been many surveys of mental
health problems among juveniles in the criminal justice
system, there are methodological limitations that make
interpretation difficult and comparisons across studies
problematic. For example, a number of reports have
solely used self-report questionnaires10,11 or data from
medical records12,13 or interviewed selected populations14,15 or those in care and foster homes rather
than in detention.16 Others have reported prevalence
information for any psychiatric disorder rather than for
specific disorders17 or used other measures of mental
distress than psychiatric diagnoses.18,19
Previous narrative reviews of the literature on juvenile
offenders provided prevalence ranges for various mental
disorders, but did not examine the gray literature (only
partly or not formally published reports) systematically
or attempted to account for the wide variations in
prevalence estimates. Prevalence ranges were reported in
an American Academy of Pediatrics report, providing
estimates of 1% to 6% for psychosis, 20% to 60% for
conduct disorder, and 32% to 77% for attention-deficit/
hyperactivity disorder (ADHD).3 A more recent review,
based on nine identified studies, provided prevalence
estimates of any psychiatric disorder of between 19%
and 78%.20 Therefore, we conducted a systematic
review and meta-analysis of all of the available surveys of
psychiatric morbidity among adolescents in juvenile
detention to clarify the prevalence of mental disorders.
METHOD
Studies of the prevalence of mental disorder in boys and girls ages
19 years and younger in juvenile detention and correctional facilities
published between January 1966 and May 2006 were sought by
computer-based searches (EMBASE, PsycINFO, Medline, U.S.
National Criminal Justice Reference System Abstract Database),
scanning of related reference lists, hand-searching of relevant
journals, and correspondence with authors of such reports, as
described previously.21 Search terms combined those related to
juveniles (juvenile*, adol*, young*, youth*, boy*, or girl*) and
custody (prison*, jail*, incarcerat*, custod*, imprison*, or detain*).
Eligible surveys involved diagnoses of psychotic disorder, major
depression, ADHD, or conduct disorder following clinical examination and/or a clinical interview using structured diagnostic
instruments. We excluded surveys that involved juveniles referred
or selected specifically for psychiatric assessment (i.e., selected or
enriched22 samples), solely used self-report instruments or where
J. AM . ACAD. CHILD ADOLESC. PSYCH IAT RY, 47:9, SEPTE MBER 2008
prevalence data were not separated for males and females,23Y27 unless
where the proportion of boys was >90%.28,29 Psychotic illness,
depression, ADHD, and conduct disorder were included due to their
treatability and conduct disorder also because of its prognostic
value.30,31 We excluded substance misuse because its prevalence is
likely to be substantially affected by various reporting and
ascertainment biases, including the availability of drugs at a
particular time and context. Psychotic illness included ICD and
DSM diagnoses of schizophrenia, bipolar affective disorder,
schizoaffective disorder, delusional disorder, and organic psychotic
disorder, but excluded psychotic symptoms secondary to substance
misuse. Major depression included ICD and DSM diagnoses of
unipolar affective disorder (with symptoms present for at least 2
weeks). For psychotic illness, depression, and ADHD (ICD or DSM
diagnosis, respectively), prevalence was related to a current diagnosis
(i.e., during the past 6 months, thus excluding one study in which
the prevalence of psychosis was reported for the past year32 and one
other small study in which it was not clarified32a), whereas conduct
disorder involved any lifetime diagnosis (according to ICD or DSM).
We opted for current rather than lifetime diagnosis of ADHD
because this is consistent with the DSM-IV. In addition, a previous
study found that the criterion insisting on age at onset before 7 years
led to underreporting of ADHD because, in the absence of a
caretaker informant, most participants could not remember when
their symptoms began.33 Finally, there was insufficient detail in
included studies to reliably estimate rates of comorbidity.
For each eligible study, data were abstracted independently by the
first and third authors according to a fixed protocol (supplemented
by correspondence with authors of relevant studies) and separately by
sex for geographic location, year of interview, sampling method
(consecutive admissions, total population, random, stratified random, or some combination), participation rate, number of
interviewed youths, diagnostic instrument(s) and criteria (ICD or
DSM), type of interviewer (psychiatrist versus other), proportion of
individuals diagnosed with each studied disorder, mean age and
age range, mean duration of incarceration at the interview, and
proportion with violent offenses. Any discrepancies in the ratings
led to further review of the article and discussions with the authors,
where possible, and, if not, between the raters until consensus
was reached.
Data Analysis
Estimates of prevalence of particular disorders from different
studies were combined using fixed- or random-effects metaanalysis, as appropriate, with the data presented in forest plots.
Smaller studies (those including <100 individuals) were aggregated,
with analyses being performed on the aggregated and nonaggregated data. Heterogeneity among studies was estimated using
Cochran Q and the I2 statistic, the latter describing the percentage
of variation across studies that is due to heterogeneity rather than
chance.34,35 I2, unlike Q, does not inherently depend on the
number of studies considered. Heterogeneity was indicated by a Q
statistic (reported with a W2 value) with p < .10, whereas in terms
of I2, values of 25%, 50%, and 75% can be taken to indicate low,
moderate, and high levels of heterogeneity, respectively.18 We
calculated fixed estimates of pooled prevalence when heterogeneity
was not significant and random-effects estimates of overall prevalence when heterogeneity was significant.36 Random-effects estimates, in which the between-study variance is much larger than the
within-study variance (as is the case with significant heterogeneity),
give relatively similar weight to studies of different size. In contrast,
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FAZEL ET AL.
fixed-effects estimates are weighted by study size. Metaregression

was used to estimate the extent to which one or more measured
covariates (sex [in overall analyses], size of study [as a continuous
variable], study origin [United States versus elsewhere], instrument
[Diagnostic Interview Schedule for Children (DISC) versus another
instrument], interviewer [psychiatrist versus nonpsychiatrist], sampling scheme [stratified/nonstratified random versus consecutive/
complete], and mean subject age [older than 15 years versus 15 years
or younger]) could explain the observed heterogeneity in prevalence
estimates.32,37 The presented regression coefficients (") indicate
the average difference in prevalence proportion for one category
compared to the other (e.g., DISC versus another instrument)
adjusted for the effect of all of the other variables in the model. The
influence of individual studies on the summary effect was explored
using an influence analysis, in which meta-analysis estimates are
computed omitting one study at a time.38 All of the analyses
were undertaken with STATA statistical software package, version
10.0.
RESULTS
Twenty-five surveys meeting the inclusion criteria

were identified, involving 16,750 adolescents of whom
13,778 were boys and 2,972 girls (see Table A, which is
available online through the Article Plus feature on the
Journals Web site at www.jaacap.com).28,29,32,33,39Y54
Their weighted mean age was 15.6 years (range 10Y19
years). Fifteen surveys were conducted in the United
States (N = 15,628 adolescents),28,29,33,39Y44,48Y50,55Y57
four in the United Kingdom (N = 264)32,46,52,58 and
one each in Australia (N = 100),59 Russia (N = 370),47
Holland (N = 204),53 Denmark (N = 100),45 Canada
(N = 49),51 and Spain (N = 35).54 Sampling strategies
included consecutive recruitment of participants (N =
12,577 juveniles),28,39,43,45Y50,52,53,55Y57 stratified random sampling (N = 2,824),32,33,40,46 simple random
sampling (N = 870),29,41,44 and a complete sample
(N = 430).42,47 For one study with 49 participants,51
the recruitment strategy was not reported. Nineteen
studies (N = 15,668 juveniles) reported response
rates,28,29,32,33,39,41Y43,45Y50,52,55Y58 only three of which
(N = 176) were less than 75%.29,46,56 The following
instruments were used: the DISC,33,41,42,49,53,56,57 the
Diagnostic Interview for Children and AdolescentsRevised,28,51 Research Diagnostic Criteria for depression,48 the Schedule for Affective Disorders for
School-Age Children, Present, Lifetime or Epidemiologic Version,45Y47,59 the Adolescent Psychopathology
Scale and Juvenile Detention Interview,44 the Practical
Adolescent Dual Diagnostic Interview,55 the Salford
Needs Assessment Schedule for Adolescents,58 and a
semistructured instrument.40 All of the studies yielded
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DSM diagnoses apart from two that provided ICD-10

diagnoses for 145 juvenile detainees (less than 1% of
the total number included in the review).32,45 Where
described, all of the studies solely used the juveniles
as informants.
Figure 1 presents sex-specific prevalence estimates for
psychotic illness, major depression, ADHD, and conduct
disorder by study along with an overall estimate. Influence
analysis (plots not shown) indicated that larger studies had
the most influence on the results, although for the
random-effects estimates (calculated because of significant study heterogeneity for all of the disorders except
psychotic illnesses), no study had statistically significant
influence on the overall estimate. For the fixed-effects
estimate of the prevalence of psychotic disorder, only one
large study39 had a significant influence on the estimate
in boys (so that excluding this study led to an estimate
outside the 95% CI of the overall estimate).
Psychotic Illnesses
We identified 12 surveys with information on

psychotic illnesses33,39Y46,54,58,59 including a total of
14,710 adolescents. Overall, 430 of 12,468 boys (fixedeffects pooled prevalence 3.3%; 95% CI 3.0%Y3.6%
[Fig. 1]) had a current psychotic disorder. There was
some heterogeneity with respect to prevalence among
these studies (W29 = 15.7, p = .07) with a low to
moderate I2 of 42.7%. On metaregression, no tested
factor significantly explained this heterogeneity in
prevalence. In the girls, three smaller studies44,54,58
were aggregated and 64 of 2,242 individuals (fixedeffects pooled prevalence 2.7%; 95% CI 2.0%Y3.4%)
had a psychotic illness, with little heterogeneity among
studies (W24 = 3.3, p = .51) and an I2 of 0.0%. In the
nonaggregated data, one study44 with zero prevalence
was excluded, and 64 of 2,163 girls (2.9%; 95% CI
2.2%Y3.6%) had a psychotic illness. Because of lack of
heterogeneity, metaregression on the estimates was not
performed; there was no significant difference in the
prevalence of psychotic illness between males and
females (" = .004, SE(") = .004; p = .30).
We looked separately at manic episodes among these
surveys. Four studies reported on rates of manic episodes
in boys,28,32,33,41 and with the zero prevalence study
excluded,32 there was an aggregated prevalence of 3.1%
(95% CI 0.4%Y5.7%) using a random-effects model
(W22 = 9.9, p =.007, I2 = 79.8%). Only one study
reported on bipolar disorder.28 In the girls, one survey
Fig. 1 Prevalence of four major mental disorders among juveniles (boys and girls) in custody. Psychotic illnesses. Boys: W29 = 15.7 p = .073; I2 = 42.7%.
Girls: W24 = 3.32, p = .51; I2 = 0.0%. Major depression. Boys: W29 = 91.5, p < .001; I2 = 90.2. Girls: W23 = 29.8, p < .001; I2 = 85.1%. Attention-deficit/
hyperactivity disorder. Boys: W27 = 589.7, p < .0001; I2 = 98.8%. Girls: W24 = 137.3, p < .001; I2 = 97.1%. Conduct disorder. Boys: W28 = 754.5, p < .0001;
I2 = 98.9%. Girls: W23 = 265.0, p < .001; I2 = 98.9%. The figure for psychosis assumes a fixed-effects model; the others are random effects. Error bars
indicate 95% CIs around individual study prevalences. The open diamond-shaped symbol at the bottom of each plot denotes the pooled (fixed or random
effects) mean prevalence with 95% confidence interval. The W2 (Cochran Q) and the I2 estimates are measures of heterogeneity; the latter expresses the
percentage of variation across studies resulting from heterogeneity rather than chance. CI = confidence interval.
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FAZEL ET AL.
Fig. 1 (Continued)
1014
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presented prevalence estimates; 1.2% (95% CI

0.6%Y2.4%) for manic episodes with impairment.33
Major Depression
Eighteen surveys reporting on major depression were

identified28,33,41,42,45Y51,53Y59 including a total of 4,959
adolescents. Overall, 391 of 3,323 boys (random-effects
pooled prevalence 10.6%; 95% CI 7.3%Y13.9%) and
457 of 1,633 girls (29.2%, 21.9%Y36.5%) were
diagnosed with current major depression. There was
substantial heterogeneity in the reported prevalences
even after aggregating seven smaller studies for
boys32Y36,42,46 and 10 for girls26,28,32Y34,36,40Y42,44
(W29 = 91.5, p <.001, I2 = 90.2% in boys; W23 = 29.8,
p < .001, I2 = 89.9% in girls). In the nonaggregated
data, the random-effects pooled prevalences were
slightly higher for both boys, at 11.4% (95% CI
8.5%Y14.2%) and for girls at 29.7% (95% CI
22.1%Y37.3%). On metaregression, adjusting for
study size and mean age (both with a nonsignificant
association with prevalence), this heterogeneity was
explained by sex (girls having higher prevalences: " =.16,
SE["] = .04; p < .001), type of instrument (studies using
the DISC yielding lower prevalences: " = j.18, SE["] =
.04; p < .001), and type of interviewer (studies using
psychiatrist interviewers having lower prevalences: " =
j.14, SE["] = .05; p = .003), irrespective of whether an
instrument was used. Thus, on subgroup analysis for
all of the studies that used instruments (excluding two
reports54,58), lower prevalences of depression were
reported when the instruments were administered by
psychiatrists rather than other interviewers (" = j.15,
SE["] = .06; p = .018).
ADHD
We identified 13 surveys that reported on ADHD

among a total of 14,639 adolescents.28,33,39,41,45,47,
49,51,53,54,57Y59
Overall, 2,549 of 12,057 boys (randomeffects pooled prevalence 11.7%; 95% CI 4.1%Y19.2%)
and 613 of 2,582 girls (18.5%; 95% CI 9.3%Y27.7%)
were diagnosed with current ADHD. There was
substantial heterogeneity in prevalences across studies
even after aggregating three smaller studies for
boys33,35,36 and four for girls33,36,40,44 (W27 = 589.7,
p < .0001, I2 = 98.8% in boys; W24 = 137.3, p < 0.001,
I2 = 97.1% in girls). In the nonaggregated data, the
random-effects pooled prevalences were slightly higher
for boys at 12.4% (95% CI 5.1%Y19.7%) but lower for
girls at 15.2% (95% CI 6.9%Y23.5%). On metaregression, the heterogeneity was explained principally by
size of study (larger studies tending to have higher
prevalences: >250 versus = 250 adolescents; " = .18,
SE["] = .02; p < .001). After adjusting for study size and
mean age (considered continuously, studies with older
participants having lower prevalences: " = j.07, SE["] =
.01; p < .001), location of study (studies from the United
States yielding lower prevalences: " = j.11, SE["] = .02;
p < .001), type of instrument (studies using the DISC
yielding lower prevalences: " = j.07, SE["] = .01; p <
.001), and type of sampling (investigations using
consecutive entrants or a complete sample having higher
prevalences: " = .07, SE["] = 0.01; p < .001) had
significant relations with prevalence. All of the above
relations, with the exception of type of sampling, tended
to be stronger the smaller the study.
Conduct Disorder
Fifteen surveys reported on conduct disorder28,29,32,

including a total of 14,667 juvenile inmates. Of 12,552 boys, 7,818 (random-effects
pooled prevalence 52.8%; 95% CI 40.9%Y64.7%) and
1,007 of 2,115 girls (52.8%, 95% CI 32.4%Y73.2%)
were diagnosed with any lifetime conduct disorder.
Again, there was substantial heterogeneity in prevalences among these studies even after aggregating six
smaller studies for boys14,33,35Y38 and four for
girls26,33,36,41 (W28 = 754.5, p < .001, I2 = 98.9% in
the boys; W23 = 265.0, p < .001, I2 = 98.9% in the
girls). In the nonaggregated data, the random-effects
pooled prevalences were slightly higher for boys at
53.9% (95% CI 43.5%Y64.4%) as compared with girls
(44.8%; 95% CI 27.1%Y62.5%). On metaregression,
this heterogeneity was explained only by type of
instrument (studies using the DISC having lower
prevalences: " = j.21, SE["] = .10; p =.030) and
mean age (studies with mean age older than 15 years
having higher prevalences: " = .26, SE["] =.10; p = .009).
33,39,41Y45,47,49,51Y55,59
DISCUSSION
This systematic review of 25 psychiatric surveys

including 16,750 incarcerated adolescents found that
approximately 3% of juveniles in detention had a
psychotic illness and that typically 11% of the boys and
29% of the girls had a major depressive disorder. The
prevalence of ADHD varied between one in 10 for
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FAZEL ET AL.
boys and one in five for girls. As would be expected,

because of considerable symptom overlap between
conduct disorder and antisocial behavior, conduct
disorder was the most common of the studied disorders,
similarly prevalent across sexes at slightly more than
50%.
Two main implications arise from these findings.
First, adolescent girls in detention are at particular risk
for major depression. The prevalence reported in this
study at 29% is considerably higher than that reported
in adult prisoners in which a previous systematic review
found that 12% of women were diagnosed with
depression.21 A second implication is that mental
disorders are substantially more common in adolescents
in detention than among age-equivalent individuals in
the general population. The largest risk increase is for
conduct disorder: in girls, the prevalence is 10 to 20
times higher than community estimates, and in boys, it
is five to 10 times higher.31,60 For psychoses, the risk
increase is about 10 times60,61 and for ADHD, it is two
to four times.60,62 Finally, major depression is about
four to five times more common in girls and twice as
common in detained boys compared with the general
adolescent population. 63,64 These proportionate
excesses for juveniles in custody compared with the
general population suggest that depression, ADHD, and
psychotic illness are associated with criminality, the
impact of detention, and/or the development of
antisocial behavior, directly or indirectly (e.g., through
confounding by socioeconomic adversity, excessive
familial conflict, child maltreatment, comorbid conduct
or substance use disorder).63,65Y67
The findings on depression are notable. A recent
meta-analysis suggested that sex differences are modest
for adolescent depression in the general population.64
Therefore, the present findings imply that antisocial
girls are either more depressed than antisocial boys
before detainment or more vulnerable to experiences
related to the confinement itself. The relative importance of depressive disorder, or some associated
confounder, for criminal behavior in female compared
to male adolescents warrants further investigation.
The metaregression suggested that surveys using the
DISC, a highly structured psychiatric interview administered by laypersons, yielded lower prevalences than
other instruments for depression, ADHD, and conduct
disorder. Informants across studies were the juveniles
themselves. Interestingly, investigations of adolescents
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with conduct disorder have previously found that the

DISC, when administered in this way (in contrast to
when parents are also informants), may underdiagnose
depression68 and ADHD.26,68 Because the DISC is
widely used, our findings suggest that studies comparing
it with other validated instruments and clinical interview
would be useful. Finally, the metaregression suggested
that surveys reporting prevalences of depression with
psychiatrists acting as interviewers led to lower prevalences than if nonpsychiatrists did the interviews, even
when an instrument was used, a result consistent with
prevalence studies of depression in adult prisoners.21
One of the implications of these findings is whether
there are ways to improve the diagnostic validity of
surveys in juvenile detention. The use of informants and
clinically trained interviewers would likely improve
diagnostic validity, although studies comparing different
approaches are necessary to confirm this. Although there
was little heterogeneity in the studies that reported on
psychosis, Teplin and colleagues33 proposed sensible
adaptations in the use of the DISC that could be made
for other diagnoses. In their study, all of the individuals
who screened positive for psychosis were counted as
cases if their symptoms had lasted for more than 1 week,
were drug or alcohol free during this period, and a
psychiatrist or clinical psychologist reviewed the cases.33
This systematic review found significant heterogeneity in the prevalences of depression, ADHD, and
conduct disorder, and the overall pooled prevalences for
these disorders reported must be interpreted with
caution. We explored the heterogeneity using metaregression, which was limited to the characteristics
reported in the studies. Clearly, other factors may have
been important in explaining the differences between
the investigations, such the type of detention facility and
associated characteristics. The latter may include the
amount of purposeful or meaningful daytime activity,
overcrowding, assault rates, and service provision within
custody, some of which are associated with suicide
rates.69 Unfortunately, such information about the
facilities was limited and inconsistently reported in
individual studies. Reporting the range of prevalences is
an alternative approach to deal with heterogeneity. We
were not able to report on rates of substance abuse
because most of the studies provided insufficient data.
Furthermore, prevalence of substance use disorders
will be complicated by local factors including the
availability of illegal drugs and alcohol in a particular
setting during a specific period and reporting biases.

Information on the specificity and sensitivity of
diagnostic screening tools was lacking in the included
reports. Although 89% of the juveniles included in
this review were from U.S. detention facilities, a
related limitation is that included surveys were from
different countries, with varying arrest patterns,
adjudication and detention policies, and background
prevalences of psychiatric disorders, all of which may
contribute to the observed heterogeneity in prevalences. However, this limitation did not contribute to
the heterogeneity for the prevalence estimates for
depression and conduct disorder. For ADHD they
did, but in an unexpected direction; studies done
outside the United States found higher prevalence
estimates of ADHD than U.S. studies.
One important clinical implication of our review is
the role of mental health care in juvenile justice. As
delinquent adolescents often come from deprived
backgrounds with little access to and use of health
care in the community, opportunities for intervention
in juvenile justice have the potential to make a
significant impact on public health terms.70 The
structure of service provision in such settings will
depend on national and local factors, but there is
evidence of the role of academic medicine in
organizing services delivery71 for adults in detention.
The American Academy of Child and Adolescent
Psychiatry has proposed practice guidelines, some of
which are underlined by the findings of this review.
Specifically, they recommend that all young people
should be screened for mental disorder and suicide risk
on entering justice facilities.72 The Academys guidelines highlight the comprehensive screening for suicide
risk and substance abuse, whereas the findings of this
review suggest that this should be extended to mood
disorders, especially in girls. Although the Academy
recommends self-report methods for screening, our
findings and other research suggest avoiding relying
solely on self-report approaches.73 After initial screening, the Academy recommends monitoring, with
particular attention to those in larger institutions
who may not be followed unless their behavioral
disturbance is severe. The importance of related
mental health needs, including substance abuse,74
literacy, and accommodation, should also be considered. Our findings highlight the recommendation that
all juvenile justice facilities should have a suicide
prevention program72 because mental disorders are

risk factors for suicide75 and suicide in young people
in detention is considerably higher than in the agematched general population. In a U.K. longitudinal
study (>26 years), it was 18 times higher.76
Research implications of the review include the need
for longitudinal studies of juveniles in detention that
would be helpful to identify the relative contributions
and interactions of various risk factors for psychiatric
disorders in prisons. Investigations of screening for
mental disorders and suicide risk are a priority, and tools
with good positive predictive value and ease of use
should be further assessed and, if appropriate, developed
and implemented. Studies of repeat offending after
juvenile detention could examine the psychiatric
determinants of recidivism and whether individuals
with mental disorders are more likely to reoffend than
other criminals. Research could also assist in understanding the extent of deliberate self-harm in juvenile
justice,77 its associations with mental illness, and
relation to suicide in detention and after leaving
detention.78 Finally, randomized, controlled treatment
trials of psychiatric treatment, including its effect on
suicide risk, institutional behavior, and criminal
recidivism, are necessary in juvenile justice. It is likely
that due to the unusual environment and the selected
nature of the population, standard treatments used in
community settings will have to be modified to increase
their efficacy for those in detention.72
In conclusion, the present findings should have
implications for the provision of adequate psychiatric
services for boys and girls in detention. Early diagnosis
and treatment are likely to confer prolonged psychiatric,79,80 violence and crime reduction,7,65,66 and wider
public health benefits.70
Disclosure: The authors report no conflicts of interest.
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Guidelines for Adolescent Depression in Primary Care (GLAD-PC): I AH Cheung, RA Zuckerbrot, PS Jensen et al.
Objectives: To develop clinical practice guidelines to assist primary care clinicians in the management of adolescent depression. This first
part of the guidelines addresses identification, assessment, and initial management of adolescent depression in primary care settings.
Methods: By using a combination of evidence-and consensus-based methodologies, guidelines were developed by an expert steering
committee in 5 phases, as informed by (1) current scientific evidence (published and unpublished), (2) a series of focus groups, (3) a formal
survey, (4) an expert consensus workshop, and (5) draft revision and iteration among members of the steering committee. Results:
Guidelines were developed for youth aged 10 to 21 years and correspond to initial phases of adolescent depression management in primary
care, including identification of at-risk youth, assessment and diagnosis, and initial management. The strength of each recommendation
and its evidence base are summarized. The identification, assessment, and initial management section of the guidelines includes
recommendations for (1) identification of depression in youth at high risk, (2) systematic assessment procedures using reliable depression
scales, patient and caregiver interviews, and Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition criteria, (3) patient and
family psychoeducation, (4) establishing relevant links in the community, and (5) the establishment of a safety plan. Conclusions: This part
of the guidelines is intended to assist primary care clinicians in the identification and initial management of depressed adolescents in an era
of great clinical need and a shortage of mental health specialists but cannot replace clinical judgment; these guidelines are not meant to be
the sole source of guidance for adolescent depression management. Additional research that addresses the identification and initial
management of depressed youth in primary care is needed, including empirical testing of these guidelines. Identification, assessment, and
initial management. Reproduced with permission from Pediatrics, 120(5);e1299Ye1312. Copyright *2008 by the AAP.
WWW.JAACAP.COM
1019
A c k n o w l e d g e m e n t s
The authors would like to thank a number of legal practitioners, advocates and scholars who provided valuable
data, insights and/or editorial review for this Report. In particular the authors thank Tim Arnold and Kathleen
Schmidt of the Kentucky Department of Public Advocacy, Pat Arthur, National Center for Youth Law, California,
Bradley Bridge, Public Defender, Defender Association of Pennsylvania, Sandra Coliver, Open Society Institute,
New York, Rodger Dillon, California Senate Committee on Labor and Industrial Relations, Mary Ellen Johnson,
November 2007
Pendulum Foundation, Colorado, Pierre Marc Johnson, Heenan Blaikie, Quebec, and Barry Krisberg, Susan Marchionna and Christopher Hartney of the National Council on Crime and Delinquency, California, Deborah Labelle,
The Frank C. Newman International Human Rights Law Clinic and

The Center for Law and Global Justice, University of San Francisco School of Law,
in association with Human Rights Advocates
Juvenile Life Without Parole Initiative, Michigan, Marsha Levick, Juvenile Law Center, Pennsylvania, Lia Monahon, Childrens Law Center of Massachusetts, and Ann Skelton, Carina du Toit and Ronaldah Ngidi of the Centre
for Child Law, University of Pretoria, South Africa, and Bryan Stevenson, Equal Justice Initiative, Montgomery,
Alabama and New York University Law Professor. The authors are tremendously appreciative of the partnership
with Brian Foley, Visiting Associate Professor, Drexel University College of Law, Pennsylvania in developing the
Appendix to this Report on U.S. law, and the time and research dedicated by University of San Francisco School of
Principal Authors:
Michelle Leighton
Director, Human Rights Programs
Law Librarian, Jill Fukunaga, and to Nick Imparato, Professor University of San Francisco School of Business and
Management, for assistance in key diplomatic meetings. The authors were fortunate to have the design services of
Jamie Leighton, JLL Designs and editorial acumen of Angie Davis, USF School of Law Communications Director, as
well as the consultation of Lori Teranishi.
Center for Law and Global Justice

mleighton@usfca.edu
The authors also wish to recognize Dean Jeffrey Brands support for the project and the outstanding research of
University of San Francisco School of Law
University of San Francisco law students who contributed to this and earlier reports to the United Nations and
particularly acknowledge the stellar research assistance of Jennifer Porter who worked throughout the summer
Professor Connie de la Vega

Director, Frank C. Newman International
Human Rights Law Clinic
delavega@usfca.edu
and fall terms of 2007, as well as Nicole Skibola, Patricia Fullinwider and Angela Fitzsimons who helped to prepare
earlier U.N. reports on the subject, and Amanda Solter.
The work of the USF Center for Law and Global Justice and Frank C. Newman International Human Rights Law
Clinic is made possible at the United Nations through the close collaboration of Human Rights Advocates (HRA)
and its Board of Directors. HRA is non-profit organization dedicated to promoting and protecting international
human rights. It participates actively in the work of various United Nations human rights bodies, using its status
as an accredited Non-Governmental Organization and can be found at www.humanrightsadvocates.org.
Special Acknowledgement to the JEHT Foundation
The Project itself and its accomplishments in advocating for the abolition of juvenile life without parole sentences around the world would not have been possible but for the generous support of the JEHT Foundation,
New York, N.Y. The Foundations assistance to the USF Center for Law and Global Justice enhanced the Centers ability and capacity to work directly with NGOs in the U.S., at the U.N. and in the field, as well as with
governments and international organizations.
T a b l e
o f
C o n t e n t s
FAQs
Executive Summary
iii
Section I. Introduction and Overview
Section II. Country Practice in Imposing Life Sentences without the Possibility
of Release for Child Offenders
A. United States: Most Egregious Violator of the Prohibition Against

LWOP Sentences for Children
B. Israel
C. Countries that Recently Changed their Practice to Prohibit LWOP

Sentences for Juveniles
D. Countries that Could Conceivably Allow LWOP Sentences for Juveniles but
where no Practice Exists
11
Section III. International Law Prohibits Life Imprisonment Without Possibility

of Parole or Release for Child Offenders
13
A. Treaties Prohibit LWOP Sentences
13
B. The U.S. Found in Direct Violation of its Treaty Obligations
14
C. The Prohibition of Juvenile LWOP is Customary International Law

and a Jus Cogens Norm.
15
Section IV. Juvenile Justice and Rehabilitation Models
18
A. The German Model of Alternative Sentencing and Juvenile Rehabilitation
18
B. New Zealand Family Group Conference
18
C. The Georgia Justice Project Holistic Approach to Juvenile Rehabilitation
19
D. The Annie E. Casey Foundations Juvenile Detention

Alternatives Initiative
20
E. The Bridge City Center for Youth, Lousiana
20
Section V: Conclusions and Recommendations
21
Endnotes
APPENDIX: Survey of U.S. State Law
f r e q u e n t l y
2,388
The number of children
sentenced to die in U.S. and Israeli prisons.
0
The number of children sentenced
to die in prisons in the rest of the world.
2,381
sentenced to die in U.S. prisons.
7
sentenced to die in Israeli prisons.
135
The number of countries that
have abolished the juvenile life without
parole sentence.
a s k e d
q u e s t i o n s
What is a life without possibility of pa-
Have all other countries eliminated the
role or release (LWOP) sentence?
possibility of sentencing children to
The person incarcerated will not be given any opportunity
LWOP terms by law?
for parole review and thus is condemned to die in prison.
No. There are nine other countries besides the United
This is the harshest sentence that can be given to anyone
States and Israel of concern: Australia could have two
short of execution.
child offenders serving the life without parole sentence

depending on the outcome of a High Court decision ex-
Why is a life without possibility of pa-
pected in 2008. Eight countries have not officially de-
role or release (LWOP) Sentence not ap-
clared it against law but there are no known cases that
propriate for children?
exist: Antigua and Barbuda, Belize, Brunei, Cuba (a re-
The harsh sentences dispensed in adult courts do not take
form bill is pending), Dominica, Saint Vincent and the
into account the lessened culpability of juvenile offenders,
Grenadines, the Solomon Islands, and Sri Lanka (legisla-
their ineptness at navigating the criminal justice system, or
tion is pending). On a positive note, South Africa and
their potential for rehabilitation and reintegration into so-
Tanzania, which had been reported to have 5 children
ciety. Psychologically and neurologically children cannot
serving LWOP between them, have now officially indi-
be expected to have achieved the same level of mental de-
cated they will provide parole for all juvenile offenders.
velopment as an adult, even when they become teenagers.

They lack the adult capacity to use reasoned judgment, to
Do LWOP sentences for children violate
prevent inappropriate or harmful action generated as a re-
international human rights laws?
sult of high emotion and fear, or to understand the long-
Yes. The sentence violates customary international law
term consequences of rash actions.
binding all nations and is expressly prohibited under any

circumstance by Article 37 of the U.N. Convention on the
How many countries have persons serv-
Rights of the Child, ratified by all countries of the world
ing LWOP for crimes committed before
except the U.S. and Somalia. Trying children as adults and
the age of 18?
imposing a life without parole sentence is also a violation of
Two: the United States and Israel. The United States has
Article 24 of the International Covenant on Civil and Politi-
99.9% of all cases of juvenile offenders serving LWOP,
cal Rights and could be considered cruel, unusual or de-
with 2,381 such cases. Of those cases, 149 have been sen-
grading treatment under the Convention Against Torture.
tenced since 2005.

Do children of color suffer discrimination in receiving the LWOP sentence?
Yes. In the United States, African American children are
ten times more likely than white children to be given a life
without parole sentence. In some states, including California, the rate is 20 to 1.
REPORT ON HUMAN RIGHTS VIOLATIONS
Sentencing Our Children to Die in Prison i
E X E C U T I V E
S U M M A R Y
This report focuses on the sentencing of child offenders

those convicted of crimes committed when younger than
18 years of ageto a term of life imprisonment without the
possibility of release or parole (LWOP). The sentence
condemns a child to die in prison. It is the harshest sentence an individual can receive short of death and violates
international human rights standards of juvenile justice.
Imposing LWOP on a child contradicts our modern understanding that children have enormous potential for
growth and maturity as they move from youth to adulthood, and undergo dramatic personality changes as they
mature from adolescence to middle-age. Experts have
documented that psychologically and neurologically children cannot be expected to have achieved the same level
of mental development as an adult, even when they become teenagers. They lack the same capacity as an adult to
use reasoned judgment, to prevent inappropriate or harmful action generated as a result of high emotion and fear, or
to understand the long-term consequences of rash actions.
For many children, LWOP is an effective death sentence, carried out by the state slowly over a long period of time. The
young age of those serving time in the United States, for example, makes them more susceptible to severe physical abuse
by older inmates, including sexual assault. This can produce
additional trauma for children who are likely to have suffered
physical abuse before entering prison. Children also endure
emotional hardship, hopelessness and neglect while serving
time. In the U.S., some child offenders believe execution to be
more humane than living with the knowledge that their
death will come only after many decades of confinement to a
small, concrete and steel cell. With no hope of release, they
feel no motivation to improve their development toward maturity. This is reinforced by prison officials who tend to give
up on the juveniles sentenced to die in prison, providing
them with no real education or life skills (resources better
spent on those who have a chance of release). In this context,
the sentence is indeed cruel and unusual.
On a global level, the consensus not to impose LWOP sentences on children is virtually universal. Based on the au-
thors research, there are only two countries in the world

today that continue to sentence child offenders to LWOP
terms: the United States and Israel. The U.S. has at least 2,381
children serving life without parole or possibility of release
sentences while Israel is known to have 7.
The last documented case in Israel occurred in 2004 but
there is concern that Israel may apply the sentence again
to child offenders convicted of political or security crimes.
Yet, from 2005-2007 alone, U.S. courts sentenced an additional 149 children to LWOP terms. Australia is also a
country of concern because a law passed in New South
Wales may have the effect of applying life without parole
sentences to at least two juveniles whose cases are pending before the countrys highest court.
This year, Tanzania and South Africa, countries reported to
have had child offenders serving LWOP sentences, have
now officially stated that they will allow parole for juveniles in all cases. This is a laudable departure from earlier
positions and one that the authors and other human rights
groups look forward to monitoring.
More than ever before, the community of nations today
resolutely condemns the practice as against modern societys shared responsibility toward child protection and,
more concretely, as a human rights violation prohibited by
treaties and international customary law. The U.S. and Israel have ratified a number of international treaties which
they are violating by allowing LWOP sentences for juvenile offenders.
The authors have prepared this report in part to expose this
human rights abuse to the global public, other governments
and the United Nations and, in part, to share this information more clearly with the American public and officials.
This is of particular concern today for Americans because, as
was the case with the juvenile death penalty, there is no evidence that the severity of this sentence provides any deterrent effect on youth and the sentence rules out the
possibility of rehabilitation and redemption for our children.
Given the extraordinary number of child offenders serving
iii REPORT ON HUMAN RIGHTS VIOLATIONS
this sentence in the U.S. as compared to the rest of the

world, Americans may well ask why so many U.S. states
continue to violate international human rights law, as
practiced by virtually every other country in the world
where children also sometimes commit terrible crimes.
Why does the U.S. continue to impose a sentence that is
not humane, appropriate or a deterrent to crime and
which fails Americas children and adults?
Surveys demonstrate that Americans believe in the redemption and rehabilitation of children and do not believe that
incarcerating youth in adult facilities teaches them a lesson
or deters crime. The countrys juvenile justice laws and policies should better reflect this understanding. In fact, the U.S.
as a nation could follow the lead of Germany, New Zealand
or the U.S. states of Georgia, Florida and Louisiana, where
alternative sentencing structures are succeeding in rehabilitation and reduction of recidivism. These would more
soundly address the publics concerns over punishment and
safety, while enhancing the opportunity for juveniles to become mature and productive contributors to society.
United States abolish this sentence under federal law

and undertake efforts to bring the U.S. states into compliance with U.S. international obligations to prohibit this
sentencing, including to rectify the sentences of those juvenile offenders now serving LWOP; evaluate the disproportionate sentencing of minorities in the country and
work more expeditiously to eradicate the widespread discrimination in the countrys juvenile justice system, including to consider more equitable and just rehabilitation
models as described in this Report; and monitor and publish data on child offenders serving LWOP sentences in
each state. The United States should also ratify the U.N.
Convention on the Rights of the Child.
Israel abolish LWOP sentences for juveniles under all
circumstances, including for political and security related
crimes and that it rectify and/or clarify the sentences of
the seven juveniles in question who may be serving a
LWOP sentence to come into compliance with their obligations under the U.N. Convention on the Rights of the
Child and international law.
The Report commends the efforts of governments, international organizations and NGOs for their efforts in the
past few years to more urgently bring non-complying governments into compliance with international law and juvenile justice standards. The authors conclude by
recommending that:
Tanzania follow through expeditiously in clarifying by

law that any child currently serving or who may be given a
life sentence for any crime will be subject to parole review
and to further bring its juvenile justice system into compliance with its obligations under the U.N. Convention on
the Rights of the Child and international law.
Countries continue to denounce the practice of sentencing juveniles to life without possibility of release as
against international law, to condemn the practice among
the remaining governments which allow such sentencing,
and to call upon those where the law may be ambiguous
to institute legal reforms confirming the prohibition of
such sentencing; and further to remove barriers to the enforcement of international standards and expand their juvenile justice models to focus more extensively on
rehabilitation programs, including education, counseling,
employment and job training and social or community
service programs and to evaluate these models to ensure
protection of the rights of juveniles.
South Africa pass without haste the Child Justice Bill to

clarify abolition of juvenile LWOP sentencing under all
circumstances.
Australia clarify the legal prohibition of LWOP sentences for juveniles and ensure that its provinces bring
their laws into compliance with its obligations under the
U.N. Convention on the Rights of the Child, International
Covenant on Civil and Political Rights and other international laws related to juvenile justice.
Sentencing Our Children to Die in Prison
I .
I n t r o d u c t i o n
&
O v e r v i e w
This report focuses on the sentencing of child offenders
For many children, LWOP is an effective death sentence,
juveniles sentenced to die in prison, providing them no real
tences, have now officially stated that they will allow pa-
to a term of life imprisonment without the possibility of
carried out by the state over a long period of time. They
education or life skills (resources better spent on those
role for juveniles in all cases, as discussed in Section II
release or parole (LWOP). These are children convicted
may be threatened with physical abuse during their incar-
who have a chance of release).7
below. This is a laudable departure from earlier positions
of crimes committed when younger than 18 years of age,
ceration--the young age of those serving time in the
as defined by the international standards contained in
United States, for example, makes them more susceptible
In this context, the sentence is indeed cruel and unusual.
the U.N. Convention on the Rights of the Child.1 The sen-
to severe physical abuse by older inmates.
These issues have become so well-understood at the inter-
lease is the harshest of sentences an adult can receive short

of death. Imposing it on a child con-
The community of nations now condemns the practice by
Many adolescents suffer horrific abuse for years when
raises the possibility that it not only violates juvenile jus-
any state as against modern societys shared responsibility
sentenced to die in prison. Young inmates are at particular
tice standards but international norms prohibited by the
for child protection and, more concretely, as a human
risk of rape in prison. Children sentenced to adult prisons
United Nations Convention Against Torture.
rights violation prohibited by treaties and expressed in in-
Based on the authors

research, there are
only two countries in
the world today that
continue to sentence
child offenders to
LWOP terms: the
United States and Israel. The U.S. has at
least 2,381 children
serving life without parole or possibility of
release sentences
while Israel is known
to have 7.
tradicts our modern understanding

that children have enormous potential
for growth and maturity as they move
from youth to adulthood, and the
widely held belief in the possibility of a
childs rehabilitation and redemption.
This growth potential counters the
instinct to sentence youthful offenders to long terms of incarceration in
order to ensure public safety. Whatever the appropriateness of parole eligibility for 40-year-old career
look forward to monitoring.
national level that a states execution of this sentence
tence condemns a child to die in prison.

The sentence of life in prison without the possibility of re-
and one that the authors and other human rights groups
criminals serving several life sen-
ternational customary law. The authors have prepared this
typically are victimized because they

have no prison experience, friends,
Globally, the consensus against imposing LWOP sentences
report in part to expose this human rights abuse to the
companions or social support. Chil-
on children is virtually universal. Based on the authors re-
global public, other governments and the United Nations,
dren are five times more likely to be
search, there are only two countries in the world today that
and to share this information more clearly with the Amer-
sexually assaulted in adult prisons
continue to sentence child offenders to LWOP terms: the
ican public and officials. This is of particular concern
than in juvenile facilities.5
United States and Israel.9
today for Americans because there is no evidence that the

severity of this sentence provides any deterrent effect on
This can produce additional trauma for
The United States has at least 2,381 children serving life
youth, just as was found to be the case with the juvenile
children who are likely to have suffered
without parole or possibility of release sentences while
death penalty. The U.S. Supreme Court has found, the
physical abuse before entering prison.
Israel is known to have seven.10 The last documented
absence of evidence of deterrent effect is of special con-
One recent study of 73 children serving
case in Israel occurred in 2004 but there is concern that
cern because the same characteristics that render juve-
LWOP sentences in the U.S. for crimes
Israel may apply the sentence again to child offenders
niles less culpable than adults suggest as well that
committed at age 13 and 14 concluded:
convicted of political or security crimes.11 In the United
juveniles will be less susceptible to deterrence.13 Ameri-
They have been physically and sexu-
States from 2005 to 2007, courts sentenced 149 children to
cans may well ask: why do so many U.S. states continue
ally abused, neglected, and abandoned;
serve LWOP terms. For both the United States and Israel
to violate international human rights law, as practiced by
tences, quite different issues are raised for 14-year-olds,
their parents are prostitutes, drug addicts, alcoholics, and
there are no official reforms underway, nor any expression
virtually every other country in the world where children
certainly as compared to 40-year-olds, [who] are almost
crack dealers; they grew up in lethally violent, extremely
that they will seek to amend their laws in the future to
also sometimes commit terrible crimes, by imposing a sen-
certain to undergo dramatic personality changes as they
poor areas where health and safety were luxuries their fam-
prohibit juvenile LWOP sentences or any indication they
tence that is not humane, appropriate or a deterrent to
mature from adolescence to middle age.
ilies could not afford.
plan to cease their continued violation of international
crime and which fails Americas children and adults?
human rights law.

Surveys demonstrate that Americans believe in the re-
Experts have documented that children cannot be ex-
Children endure emotional hardship, hopelessness and
pected to have achieved the same level of psychological
neglect while serving time. In the U.S, some child offend-
Moreover, Australia is of serious concern. A law passed in
demption and rehabilitation of children and do not believe
and neurological development as an adult, even when they
ers believe execution to be more humane than living with
New South Wales may have the effect of applying life
that incarcerating youth in adult facilities teaches them a
become teenagers.3 They lack the same capacity as an
the knowledge that their death will come only after many
without parole sentences to at least two juveniles whose
lesson or deters crime.14 The countrys juvenile justice laws
adult to use reasoned judgment, to prevent inappropriate
decades of confinement to a small, concrete and steel cell.
cases are pending before the countrys highest court.12
and policies should better reflect this understanding.
or harmful action generated as a result of high emotion
With no hope of release, they feel no motivation to im-
and fear, or to understand the long-term consequences of
prove their development toward maturity. This is rein-
On a positive front, Tanzania and South Africa, countries
Section II presents the global condemnation of this prac-
rash actions.4
forced by prison officials who tend to give up on the
reported to have had child offenders serving LWOP sen-
tice which has lead to international law standards, the ac-
1 REPORT ON HUMAN RIGHTS VIOLATIONS
Sentencing our Children to Die in Prison 2
II. Country Practice in Imposing LWOP Sentences

tual practices of sentencing children to LWOP in the
Very few states have historically used life sentences for juve-
Consequently, there are now only two countries in the
United States and Israel, the countries which have not ab-
nile offenders. Indeed, a single country is responsible for
world that can fairly be said to practice sentencing juve-
rogated the law recently and those where the law may re-
more than 99.9% of all child offenders serving this sentence:
niles to death in prison: the United States and Israel. For
main ambiguous. The discussion of current practice in the
the United States. Most governments have either never al-
both of these countries, officials would not assure that ei-
United States demonstrates that it is the worlds single
lowed, expressly prohibit or will not practice such sentenc-
ther reforms were underway to abolish the practice or that
largest practitioner of this sentencing and that racial dis-
ing on child offenders because it violates the principles of
the practice for future cases had effectively ceased. In
crimination has become prevalent in these and other juve-
child development and protection established through na-
essence, the two countries are likely to continue to sen-
nile sentences across the country.
tional standards and international human rights law.
tence child offenders to die in prison, though Israels use of

the sentence appears quite rare. The Israeli government
Section III analyzes international human rights standards
There are now at least 135 countries that have expressly
confirmed recently to the authors that it knows of no addi-
and the violation of international law by countries impos-
rejected the sentence via their domestic legal commit-
tional child offenders serving LWOP in the country since
ing sentences of life imprisonment without possibility of
ments15 and 185 of which have done so in the U.N.
those reported in 2004 but the authors are concerned Is-
release for child offenders. Section IV identifies several ju-
General Assembly.16
rael could apply the sentence again.
and U.S. states that can serve as an alternative to harsh
Of the remaining countries outside the United States, ten
A. United States: Most Egregious Viola-
and inappropriate sentencing for children.
may have laws that could permit the sentencing of child of-
tor of the Prohibition Against LWOP
fenders to life without possibility of release, though except
Sentences for Children
venile justice and rehabilitation models of other countries
Section V presents the conclusions and recommendations
for Israel there are no known cases where this has oc-
of the authors to governments and policy-makers in reme-
curred. Australia, one of the countries with a law that
Compared to the number of countries sentencing child of-
dying these violations.
might permit the LWOP sentence for child offenders, is of
fenders to life without possibility of release, the United
special concern because there may soon be two child of-
States, with more than 2,381 juveniles serving life sentences,
fenders serving the sentence depending on how Australias
disproportionately delivers this sentence to child offenders.19
High Court decides their appeals (see discussion below).

The other countries are Antigua and Barbuda, Belize,
Forty-four states and the federal government allow life
Brunei, Cuba, Dominica, Israel, Saint Vincent and the
sentences without the possibility of parole to be im-
Grenadines, the Solomon Islands, Sri Lanka.
posed on juvenile offenders. Among these states, 13 allow
17
sentencing a child of any age to LWOP and one sets the

The United States has at least 2,381 children who were con-
bar at 8 years or older. There are 18 states which could
victed of crimes committed before the age of 18 who are now
apply the sentence to a child as young as 10 years and 20
serving the LWOP sentence in U.S. prisons (including 149
states that could do this at age 12. Thirteen states set
sentenced since 2005). Israel has seven such cases. Tanzania
the minimum age at 14 years. These figures are startling
had been reported to have one child serving the sentence but
considering that until 2004, 59% of children in the
it has provided evidence in writing to the authors that a life
United States who were convicted and sentenced to
sentence for juveniles must include the possibility of parole
LWOP received the sentence for their first ever criminal
now, including for the one child reported. It will also intro-
conviction, 16% were between the ages of 13 and 15 when
duce legal reforms to clarify the prohibition, in conformity
they committed their crimes, and 26% were sentenced
with the U.N. Convention on the Rights of the Child (as dis-
under a felony murder charge, where they did not pull
cussed in Section II of this Report).
the trigger or carry the weapon.20
18
Sentencing Our Children to Die in Prison 4
Below is an updated summary of state practice and law.
Connecticut
Pennsylvania
Although crime rates have been steadily declining since
Iowa
Rhode Island
1994,31 it is estimated that the rate at which states sen-
Summary of State Law in the United
Massachusetts
South Carolina
tence minors to life without parole remains at least
States
Minnesota
Tennessee
three times higher than it was 15 yeas ago,32 suggesting
44 states allow life without parole sentences for juveniles.
New Jersey
West Virginia
a tendency for states to punish these youths with in-
11 states and the District of Columbia either do not allow
North Dakota
or do not appear to practice LWOP sentences for juve-
Ohio
niles. 38 states appear to apply it in practice.
Utah
creasing severity. For example, in 1990, there were 2,234
See Appendix to this Report
21
youths convicted of murder in the United States, 2.9%

of whom were sentenced to life without the possibility
Virginia
As noted above, the sentence was rarely imposed until the
of parole.33 Ten years later, in 2000, the number of
States prohibiting LWOP:
Age 13 and above
mid-1990s, when most states passed initiatives increasing
youth murderers had dropped to 1,006, but 9.1% still re-
Alaska
Georgia
the severity of juvenile punishments.
ceived the LWOP sentence.34
Colorado
Hawaii
also created prosecutorial and statutory procedures to
Kansas
Illinois
waive juveniles into the adult criminal system, where they
Disproportionate Sentencing of
Kentucky*
Mississippi
can be prosecuted and sentenced as adults.
Children of Color to LWOP
New Mexico
New Hampshire
Oregon
North Carolina
The rate of judicial waiver (allowing children to be
color sentenced to life without possibility of release in the
Oklahoma
tried as adults) increased 68% from 1988 to 1992.24
United States. Although significant racial disparities exist in
Wyoming
Since 2000, 43 U.S. states implemented legislation fa-
the overall juvenile justice system, African American children
States with no children known to be
Age 12 and above
cilitating the transfer of juveniles to adult court.
are reportedly serving life without possibility of release sen-
serving LWOP though it could be
Missouri
Twenty-eight or more states limited or completely
allowed:
Montana
eliminated juvenile court hearings for certain crimes
Maine
Age 10 and above
and at least 14 states gave prosecutors individual dis-
For example, in California, which has the greatest system-
New Jersey
South Dakota
cretion to try children as adults, bypassing the tradi-
wide racial disparity in this regard, 158 of the 227 persons
New York
Texas
tional safeguard of judicial review.26
serving the sentence for crimes committed before the age of
Utah
Vermont
Vermont
Wisconsin
In violation of international law, some children are still
dren in California are 20 times more likely to receive a life
Age 8 and above
being incarcerated in adult prisons, despite undisputed
without parole sentence than white children: Hispanic chil-
Nevada
research documenting that children are then subject to
dren are four times more likely.36
States allowing LWOP within
Such initiatives
23
Also alarming is the disproportionate number of children of
25
tences at a rate that is 10 times higher than white children.35
18 are of minority background and African American chil-
greater physical violence and rape, commit or attempt
certain age limits

Age 16 and above
22
States that could apply LWOP
to commit suicide at greater rates and suffer lifelong
Racial disparities track in jurisdictions across the United
Indiana
at ANY age
emotional trauma. The National Council on Crime and
States. Other examples are:
Age 15 and above
Delaware
Delinquency found that one in 10 juveniles incarcerated
Louisiana
Florida
on any given day in the U.S. will be sent to an adult jail
Alabama
Washington
Idaho
to serve their time. The number of children serving
Children of color are: 36% of the child population;37 73%
Age 14 and above
Maine
time in adult jails increased 208% between 1990 and
of children serving LWOP sentences (49% are African
Alabama
Maryland
2004.29 By transferring juveniles to the adult court sys-
American);38 and 100% of children serving LWOP for non-
Arizona
Michigan
tem, many states neglect to honor the status of these mi-
homicide offenses.39
Arkansas
Nebraska
nors as juveniles, a violation of the U.S. obligations
Colorado
California
New York
under Article 24 of the International Covenant on Civil
African-Americans are 4.4% of the child population and
and Political Rights.30
26% of those serving LWOP sentences.40
Kentuckys law is now uncertain as 3 cases of juvenile LWOP are being challenged in the courts as unconstitutional.
27
28
tody than white children, even though they make up just
Michigan
Children of color are: 27% of the population; and 71% of
16% of the total U.S. child population (compared to 78%
children serving LWOP sentences.42
white children).50
Under age 17, African American children in Michigan are
Children of color are also much more likely than white
19% of the population but 65% of children serving LWOP
youth to do their time in adult prison. As Figure 1 (right)
sentences. On a county-by-county basis, the disparities
shows, 26 out of every 100,000 African American children
are even more significant.
are serving time in adult prison while for white children the
41
Figure 1 Youth in Adult Prison: Rates of New Commitments to Prison by Offense
rate is only 2.2 per 100,000. On a state-by-state basis, these

For example, children of color are: Wayne County, Michi-
disparities are magnified as shown in Figure 2, (right).
gan: 94% of the children given LWOP sentences though

accounting for half of the child population. Oakland
The U.S. government is aware of this disparity, as are most
County, Michigan: 73% of children serving LWOP sen-
Americans. A recent survey indicated that this is a fact
tences but 11% of the child population. Kent County,
well-understood by most Americans, 60% of whom believe
Michigan: 50% of children serving LWOP sentences but
that non-white youth are more likely to be prosecuted in
13% of the child population.43
adult court.51 This is clearly not equal treatment before the

tribunals administering justice as required by Article
Mississippi
5(a) of the U.N. Convention on the Elimination of Racial
African American children are: 45% of the population;44
Discrimination to which the United States is a party.52
and 75% of children serving LWOP sentences (compared

to 20% of white children).45
Finally, of serious concern is that there is a cumulative

disadvantage to minorities entering the justice system via
Racial disparity permeates the U.S. juvenile justice sys-
arrest through the period of incarceration so that racial
tem. Though African Americans comprise 16% of the
disparity actually increases as the youth is arrested,
child population in the United States, they comprise 38%
processed, adjudicated, sentenced and incarcerated.53
of those confined in state correctional facilities.46 In analyzing the relative rate index, (a standardized index
Within the juvenile system, the trends for juvenile place-
that compares rates of racial and ethnic groups compared
ments out of the home demonstrate that youth of color suf-
to whites),
fer discrimination. From 1997 to 2003, the total placements
47
the latest data identifies minority overrep-
resentation in detention for nearly every state in the
decreased from approximately 92,000 to 97,000 yet the per-
country. For example, in South Dakota, the relative rate
centage of whites given out of home placement decreased in
index for African American children compared to whites
the same period from approximately 52% to 39%.54
in detention is 47:1; in North Dakota it is 21:1; Wisconsin

18:1; New Jersey 15:1; Wyoming 12:1; Nebraska 11:1; and
While institutions in the country have documented racial
New Hampshire 10:1.48
disparities in growing numbers over the past decade, the

U.S. government has done little to address the most serious
Children of color are also held in custody and prosecuted
discriminatory practices leading to this disparity. Even after
as adults in criminal courts and given adult sentences
passing the 2002 Juvenile Justice and Delinquency Act, a law
more often than white children.49 African American chil-
designed to address discrimination of children, the govern-
Both Figure 1 and Figure 2 produced by the National Council on Crime and Delinquency, And Justice for Some
dren are nine times more likely to be brought into cus-
ment has not ensured that effective action is taken by states
(2007). Figure 1 rates are based on numbers per 100,000 youth of that race in the population.
to address the offending discrimination in their jurisdic-
Human Rights Watch identified three other juveniles sen-
lease.62 Several children recently sentenced to life terms
It is our expectation that this information is [sic] suffi-
tions. Moreover, data on racial disparity among juveniles re-
tenced to life terms in 2004.
63
have now been given parole. Tanzania has confirmed
cient to inform you that there are mechanisms that allow
that one child offender who was 17 at the time of the crime
a review of sentence of any child who is sentenced to life,
57
ceiving life without parole is neither collected nor analyzed

by the federal government or by states in any systematic
Israeli law provides for review of life sentences at a minimum
is serving a life sentence in the country. There was con-
and that life imprisonment for the juvenile offenders does
manner, and thus the government does not inform the pub-
after 30 years, unless the youth offenders are sentenced by
cern that the Act under which he was sentenced does not
not mean it is without parole.64
lic of this disparity. Without such a systematic effort, the
military courts under the 1945 Emergency Regulations for
provide for parole. In meetings with the authors and
United States cannot effectively ensure the eradication of
political or security crimes where the commutation is not ap-
written follow-up, the government has confirmed that all
In Tanzania, the child welfare department and a parole re-
discrimination as required by the U.N. Convention on the
plicable, in which case a juvenile would serve an LWOP sen-
children, including this case, are to be eligible for parole.
view board monitor children in custody and upon being
Elimination of Racial Discrimination (CERD).
tence.58 The seven juveniles that could be serving LWOP
It committed to make the necessary changes in law to ex-
satisfied that the child has been rehabilitated will then
sentences, discussed above, would have presumably been
pressly prohibit such sentencing in the future, to allow
start a process for releasing the child.65 The life sentence
B. Israel
sentenced for political or security crimes. No reform in the
for parole review of the one child offender identified
where a child offender may not receive this review is an
Israel has anywhere between one and seven child offend-
Emergency Regulations Act or sentencing procedure is un-
above, and otherwise to come into full compliance with
unusual case because the sentence has only become possi-
ers serving life without possibility of parole sentences.55
derway to prohibit this sentence.
the Convention on the Rights of the Child. In a statement
ble under a law enacted in 1998 to punish cases of sexual
to the Center for Law and Global Justice from the Tanzan-
abuse, particularly of young children.66
It is still unclear how many of the seven youths given life

sentences are ineligible for parole. In its report to the
In a 2005 report, Human Rights Watch was not able to
ian Embassy on behalf of the Ambassador to the United
Committee on the Rights of the Child in February 2002
verify whether or how many of the seven youths would
States, officials stated:
the government identified four child offenders serving life
not be provided parole consideration because they were
sentences but did not indicate whether parole was avail-
sentenced for political or security crimes. In the authors
The juvenile justice system in Tanzania has always been
(SOSPA), 7/1998 No. 4/98, a Parliamentary Act adopted in
able, stating:
meetings and correspondence with Israeli officials during
in favour of a child. No life sentence has ever been im-
1998 after the country began experiencing record levels of
2007, officials confirmed that there is no change in the
posed on children prior to 1998.
rape, incest and sodomy of young children, some as young
59
The one law which poses an issue for sentencing of juveniles as adults is the Sexual Offenses Special Provisions Act
as 5 years old. The law sought to reduce violence against
The Supreme Court has held, in a majority decision, that
general number of life and/or LWOP cases as noted in this
the court has the discretion to review each case on its mer-
Report.
Since 2004 there have been no cases reported.
Currently there is a process to review the juvenile justice
children by increasing education and punishment for such
its; should it reach the conclusion that the appropriate pun-
However the authors continue to seek accurate informa-
system in line with the CRC. A cabinet paper has already
crimes.67 The age of the child is not considered in prosecut-
ishment is life imprisonment, and should it consider that
tion about each of the cases.
been prepared by the Ministry of Justice and Constitutional
ing cases under the Act and children are prosecuted as
Affairs on a comprehensive legislation on children, the same
adults. The law imposes stricter sentences for second- or
is expected to be submitted to cabinet secretariat soon.
third-time offenders, and offenders can be sentenced to be-
60
this punishment is just and necessary, it may sentence a

minor to life imprisonment (Miscellaneous Criminal Appli-
c. Countries that Recently Changed
cations 530/90 John Doe v. State of Israel, P.D. 46(3) 648).
their Practice to Prohibit LWOP Sen-
One Supreme Court justice, basing herself, inter alia, on the
tences for Juveniles
Convention, expressed the view that life imprisonment
tween 30 years and life. In the case of rape of a child under

At the same time a bill on miscellaneous amendments is
the age of 10, the Act mandates the automatic sentence of
expected to be tabled by Parliament before the end of
life imprisonment.68 Moreover, under any other criminal
should only be imposed on a minor in exceptional cases;
The authors had reported that Tanzania and South Africa
2007that give the High Court reversionary and discre-
convictions the President of the country confirms person-
however, her opinion was deemed as needing further
had juvenile offenders serving LWOP sentences, and that
tionary powers, in this regard the court can in suo motu
ally every sentence given to a child offender in Tanzania but
study by the justices who sat with her (Miscellaneous
Burkina Faso and Kenya, while having no children serving
call a file of any case concerning a child offender and re-
under SOSPA the court issues the sentence without review
Criminal Applications 3112/94 Abu Hassan v. State of Israel
LWOP sentences, had laws that appeared to allow for the
dress the harsh punishment that has been imposed on a
by the President.
(11.2.99 not yet published)). In practice, life imprisonment
punishment. In the past year, all of these countries have
child. It should be noted in addition to the court the so-
is imposed on minors very rarely; to date, it has been im-
clarified their practice and/or law to prohibit LWOP sen-
cial welfare officers can also move the court to make a re-
As noted above, the Tanzanian Minister of Justice is in-
posed on three 17-year-olds who stabbed a bus passenger to
tences for juveniles, as discussed below.
view. Thus based on the above information on the current
troducing a reform bill in Parliament to bring sentenc-
practice and the progress on the juvenile justice system in
ing under this Act into compliance with the Convention
61
death as part of the initiation rite of a terrorist organization; and on a youth age 17 and 10 months who strangled his
1. Tanzania
Tanzania, I can confidently say that the sentence of the
on the Rights of the Child (CRC), prohibiting cruel
employer to death after she commented on his work and
In Tanzania, the government asserts that no child under
one child serving life imprisonment will be reviewed and
and unusual punishments for children, including life
delayed payment of his salary for two days.56
the age of 18 is sentenced to life without possibility of re-
his sentence has the possibility of parole
without parole sentences for child offenders. The Act
will provide the courts with discretion in determining
ensure that its incarcerated youth receive special pro-
sentence. However, this has never been pronounced by a
that they should not have done certain acts or omis-
all sentences under the Act with respect to juveniles, in
tections over its older prison populations. The Criminal
judge in the country and officials have stated this cannot be
sions.84 There are no child offenders convicted under fed-
compliance with the CRC.69 It would also allow for the
Procedure Act 51 of 1977 at section 73(6)(b)(iv) specifies
done now in contravention of Burkina Fasos treaty obliga-
eral law serving LWOP sentences: Australian officials
offender or his family to petition the court for immedi-
that a person serving life imprisonment may not be
tions under the CRC, which apply directly in domestic law.79
have indicated that there are currently about 26 federal
ate review. In its review, the court is to ensure compli-
placed on parole until he or she has served at least 25
ance with the Convention on the Rights of Child
years, or has reached 65 years if at that time he has
Kenya has specifically clarified its compliance with the
have a non-parole period set, but neither of these persons
prohibition on life without possibility of release sen-
served 15 years. There is no parallel clause benefiting
Convention on the Rights of the Child in a report submit-
were sentenced when they were juveniles.85
tences.70 The authors will be monitoring these develop-
young offenders, and it appears that the Act aids only
ted to the CRC in 2006.80 It ratified a bill which outlaws
ments in the coming months.
people who were 50 years or older at the time of the
LWOP sentences for all children under age 18.81
prisoners with life sentences and only two of those do not
State practice in Australia is more difficult to evaluate in this

regard. In Queensland, children aged 17 in conflict with the
commission of the offence. The Reform bill under con2. South Africa
sideration may address these deficiencies and be clari-
d. Countries that Could Conceivably
law may be tried as adults in particular cases though the au-
South Africa no longer allows sentences of life without
fied in the governments report to the Committee on the
Allow LWOP Sentences for Juveniles
thors are not aware of any children serving the adult LWOP
possibility of release for child offenders and has no chil-
Rights of the Child.
but where no Practice Exists
sentence.86 This was noted of concern to the Committee on
dren serving this sentence. South Africa reported to the
the Rights of the Child in evaluating Australias compliance
CRC in 1999 that it had four child offenders serving life
More recently, in January of this year, the government an-
The other countries with life without possibility of re-
without possibility of release sentences.71 The govern-
nounced that in an attempt to curb prison over-crowd-
lease sentences available for child offenders reportedly
ments second report to the CRC does not discuss or fur-
ing, it would release 300 adults serving life sentences,
do not have any child offenders serving this sentence.
In New South Wales, two juveniles who were sentenced
ther clarify this figure. However, the head of the
some of which were former death row inmates. The op-
For the other countries listed here the laws provide for a
to life imprisonment are challenging a law enacted after
Presidents Office on Rights of the Child has confirmed to
position Inkatha Freedom Party, among other critics,
life sentence to be imposed on child offenders but it is
their sentencing which would give legal weight to a
the authors in its consultation with the Department of
stated that it is petty criminals, especially juveniles, who
not clear whether a life sentence means there is no pos-
judges recommendation that they not be given parole.
Corrections that there are no juvenile offenders serving an
should be considered for release, not people who are in
sibility of parole.82 Besides the U.S. and Israel there re-
The cases, Elliot v. the Queen88 and Blessington v. the
LWOP sentence in South African prisons, e.g. no persons
prison serving life sentences for serious crimes.76
main nine countries where it is unclear but reportedly
Queen89 are being heard now by Australias High Court.90
possible for a child offender to serve an LWOP sentence
No other juvenile LWOP cases are known. Thus, the de-
72
who committed crimes before age 18, and that all sen-
with its treaty obligations.87
tenced persons qualify now to apply for parole after a de-
3. Burkina Faso and Kenya
are: Antigua and Barbuda, Australia, Belize, Brunei,
cision of the Court to reduce or clarify the sentence will
terminate period.73 Thus, child offenders cannot be
Both Burkina Faso and Kenya had been listed in earlier re-
Cuba,83 Dominica, Saint Vincent and the Grenadines,
be critical to determining whether Australia will allow
sentenced to LWOP.
ports as countries where there was a possibility that a child
the Solomon Islands, and Sri Lanka (which has new leg-
juvenile LWOP sentences for child offenders and carry
offender could receive an LWOP sentence. However, in
islation pending that would bring it in line with the
out these sentences. If the High Court allows the LWOP
South Africa has also been considering a Child Justice Bill
March 2007 during the U.N. Human Rights Council session
CRC prohibition on LWOP). The authors observe that
sentences, Australia would be in violation of its treaty
since 2002 that would expressly clarify the illegality of life
and subsequently both countries clarified that they do not
Australia could soon become the exception depending
obligations under the Convention on the Rights of the
imprisonment for child offenders. In 2004, the South
allow for such sentences and provided written explanation
on the outcome of a case now before Australias High
Child (CRC).91
Africa Supreme Court of Appeals issued a critical decision,
to the authors.77 Both countries assert that they now apply
Court, discussed below.
Brandt v. S., which gave judges sentencing discretion with
international standards prohibiting this sentencing, particu-
regard to juveniles. The decision emphasized the impor-
larly as now recognized by the Committee on the Rights of
Australia
by Australias juvenile justice system in 2005 and with the
tance of childrens rights and reaffirmed CRC 37(b) princi-
the Child (oversight body for the CRC) in its General Com-
According to Australias report to the CRC in 2005, state,
ability of the courts to implement the treaty provisions in
ples which required juvenile imprisonment to be a last
ment on Juvenile Justice, published in February 2007.
territory and federal laws are now standardized in the age
the face of contrary domestic law. The Committed indi-
of criminal responsibility, which is 10 years of age. How-
cated that it remains concerned that, while the Conven-
74
78
resort and for the shortest time possible.75
The Committee on the Rights of the Child was concerned
Although the Brandt decision marks greater strides to-
In Burkina Faso, there is no law providing for child offenders
ever, there is a rebuttable presumption that children aged
tion may be considered and taken into account in order to
ward the expansion of childrens rights, it appears that
younger than 16 to be given life sentences. After age 16, the
between 10 and 14 are incapable, or will not be held ac-
assist courts to resolve uncertainties or ambiguities in the
there is still concern by some legal groups that the
laws could possibly be read to try the child as an adult for
countable, for committing a crime, either because of the
law, it cannot be used by the judiciary to override inconsis-
South African government has made minimal efforts to
certain crimes, making the child potentially eligible for a life
absence of criminal intent, or because they did not know
tent provisions of domestic law, and recommended Aus-
III. International Law Prohibits LWOP or

Release for Child Offenders
tralia strengthen its efforts to bring its domestic laws and
International law has recognized that the special charac-
A. Treaties Prohibit LWOP Sentences Be-
practice into conformity with the principles and provisions
teristics of children preclude them from being treated the
cause of the Special Characteristics of
of the Convention, and to ensure that effective remedies
same as adults in the criminal justice system.
Children
will be always available in case of violation of the rights of
The Convention on the Rights of the Child (CRC), a
the child.92 It is therefore surprising that an Australian
To sentence a child in such a severe manner contravenes
treaty ratified by every country in the world except the
province would be moving in the opposite direction and
societys notion of fairness and the shared legal respon-
United States and Somalia, codifies an international cus-
consider allowing an LWOP sentence for juveniles, as may
sibility to protect and promote child development. Try-
tomary norm of human rights that forbids the sentencing
be the case with the New South Wales Crimes (Sentencing
ing children in adult courts so that they can receive
of child offenders to life in prison without possibility of re-
Procedure) Act of 1999 at issue in the High Court cases of
adult punishment squarely contradicts the most basic
lease.99 In early 2007, the Committee on the Rights of the
Elliott and Blessington.
premise behind the establishment of juvenile justice sys-
Child, the implementation authority for the Convention on
tems: ensuring the well-being of youth offenders. The
the Rights of the Child, clarified this prohibition in a Gen-
Moreover, if the High Court were to allow the retroactive
harsh sentences dispensed in adult courts do not take
eral Comment: The death penalty and a life sentence
application of the harsher sentence of no parole as
into account the lessened culpability of juvenile offend-
without the possibility of parole are explicitly prohibited
mandatory on the juvenile offenders, it would be in viola-
ers, their ineptness at navigating the criminal justice
in article 37(a) CRC [of the treaty].100
tion of its treaty obligations under Article 15(1) of the In-
system, or their potential for rehabilitation and reinte-
ternational Covenant on Civil and Political Rights, which
gration into society.
The General Comments additional paragraph 27 titled,
prohibits the retroactive application of a harsher penalty
No life imprisonment without parole further recom-
that comes into law after the commission of a crime.93 It is
Moreover, indeterminate sentences lack the element
mends that parties abolish all forms of life imprison-
hoped that the Australian High Court will consider these
of proportionality which many believe is essential in a
ment for offences committed by persons under the age
international legal prescriptions in its determination of the
humane punishment. Indeed, the LWOP sentence
of 18. Providing greater clarity to this norm is the Com-
Elliott and Blessington cases now before it.
penalizes child offenders more than adults because
mittees interpretation of treaty obligations around pro-
the child, by virtue of his or her young age, will likely
cedure for trial of juveniles, requiring states to treat
serve a longer sentence than an adult given LWOP for
juveniles strictly under the rules of juvenile justice.101
the same crime.
This would effectively prohibit courts from trying juve-
94
niles as adultsthe primary mechanism in U.S. courts

The common law heritage of the United States and of
some of the states that allow LWOP in their laws
and elsewhere for seeking the LWOP sentence.
95
evolved a century ago to impose a separate punishment
Other recent developments in international law have high-
structure on children and to prohibit LWOP sen-
lighted the urgent need for countries to reconsider their ju-
tences.96 The Children Act of 1908 in England required
venile sentencing policies and prohibit by law LWOP
the special treatment of children from adults and le-
sentences for child offenders. The prohibition is recognized
niency in view of the age of the offender at the time of
as an obligation of the International Covenant on Civil and
the offense.97 The practice to impose LWOP sentences
Political Rights (hereinafter ICCPR).102 Article 7 prohibits
on children has been a more recent phenomenon at the
cruel, unusual and degrading treatment or punishment.
end of the last century, largely in the 1990s, by a small
Life terms without the possibility of parole (LWOP) are
minority of countries seeking harsher sentences against
cruel and unusual, as discussed above, when applied to
juvenile offenders.98
children. Juvenile LWOP sentences also violate Article,

10(3) which provides, [t]he penitentiary system shall com-
gin, property or birth, the right to such measures of pro-
International law as evidenced through international
cynicism, and contempt for the feelings, rights, and suffer-
prise treatment of prisoners the essential aim of which shall
tection as are required by his status as a minor
treaties and other agreements is the supreme law of the
ing of others.[citations omitted]. If trained psychiatrists
land in the United States and these principles should be
with the advantage of clinical testing and observation re-
be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded
The Committee expressed its grave concern that the
applied in the context of juvenile sentencing. The Su-
frain, despite diagnostic expertise, from assessing any juve-
treatment appropriate to their age and legal status. In sen-
treatment of children as adults is not applied in excep-
premacy Clause is the common name given to Article VI,
nile under 18 as having antisocial personality disorder, we
tencing, governments are to [i]n the case of juvenile per-
tional circumstances only[t]he Committee is of the
Clause 2 of the U.S. Constitution states:
conclude that States should refrain from asking jurors to
sons.take account of their age and the deserability of
view that sentencing children to life sentence without
promoting their rehabilitation as prescribed by Article
parole is of itself not in compliance with article 24(1) of
This Constitution, and the Laws of the United States
merits the death penalty. When a juvenile offender commits
14(4) of the treaty. This is reinforced by Article 24(1),
the Covenant.
which shall be made in Pursuance thereof; and all Treaties
a heinous crime, the State can exact forfeiture of some of
made, or which shall be made, under the authority of the
the most basic liberties, but the State cannot extinguish his
life and his potential to attain a mature understanding of
104
which states that every child shall have the right to such
issue a far graver condemnationthat a juvenile offender
measures of protection as are required by his status as a
The Committee Against Torture, the official implemen-
United States, shall be the supreme Law of the land; and
minor, on the part of his family, society and the State.
tation body for the Convention Against Torture, Cruel,
the Judges in every State shall be bound
Inhuman or Degrading Treatment or Punishment to
thereby, any Thing in the Constitution
B. The United States Found in Direct Vio-
which the United States is a legal party, further com-
or Laws of any State to the Contrary
lation of its Treaty Obligations
mented in 2006 as it evaluated U.S. compliance that the
notwithstanding.109
life imprisonment of children could constitute cruel, inThe United States ratified the International Civil and Po-
human or degrading treatment or punishment,
litical Rights Covenant (ICCPR) in 1992.
lation of the treaty.
103
The Com-
105
in vio-
mittee on Human Rights, the implementing authority for
The U.S. Supreme Court in Roper v.
his own humanity.

The extraordinary
breadth and rapid devel-
It has been demonstrated that juve-
opment in the United
niles awaiting death in prison under
States of sentencing
the LWOP sentence also have no op-
child offenders to
portunity to attain a mature under-
Simmons, abolishing the practice of ju-
LWOP since the U.S. rat-
venile executions, considered not only
ification of ICCPR con-
standing of his own humanity.111
the treaty, determined in 2006 that the United States is
Moreover, the United States has done nothing to reduce
the evolution of international law but
tradicts the assertion
C. The Prohibition of
not in compliance with the treaty by allowing LWOP sen-
the pervasive discrimination evident in many U.S. states
the evolution of practice in the commu-
that the United States
Juvenile LWOP is Custom-
tences for juveniles. It made this determination even con-
application of the LWOP sentence to children of color. As
nity of nations. The Court has re-
has applied this sen-
ary International Law and
sidering that the United States had taken a reservation to
discussed above in Section II, the rate of African American
ferred to the laws of other countries
tence only in excep-
a Jus Cogens Norm
the treaty to allow the trying of juveniles in adult court in
youth compared to white youth per 100,000 youths incar-
and to international authorities as in-
exceptional circumstances. The extraordinary breadth
cerated in adult prisons is 26 to 2; youth of color in some
structive for its interpretation of the
The prohibition against sentencing
and rapid development in the United States of sentencing
jurisdictions receive more than 90% of the LWOP sen-
Eighth Amendments prohibition of
child offenders to life without the pos-
child offenders to LWOP since the U.S. ratification of
tences given and national rates for African Americans are
cruel and unusual punishments.110
sibility of release is part of customary international law and
ICCPR contradicts the assertion that the United States
10 times that of white youth.106
has applied this sentence only in exceptional circum-
tional circumstances.
the virtually universal condemnation of this practice can

In considering Constitutional values related to the most
now be said to have reached the level of a jus cogens norm.
severe punishment of juveniles, death, the Court observed;
Once a rule of customary international law is established,
stancesthe total children sentenced to LWOP now ex-
Most recently, the United Nations General Assembly
ceeding 2,381, many of whom were first-time offenders
(G.A.) acted on the issue. By a vote of 185 to 1 (with the
(see Section II for discussion).
United States being the only country voting against it) the
It is difficult even for expert psychologists to differentiate
G.A. passed a resolution December 19, 2006, codified in
between the juvenile offender whose crime reflects unfor-
In 2006, in evaluating U.S. compliance with the treaty, the
Resolution A/61/146, calling upon states to abolish by
tunate yet transient immaturity, and the rare juvenile of-
For a norm to be considered customary international law
Committee on Human Rights found the United States to
law, as soon as possible, the death penalty and life impris-
fender whose crime reflects irreparable
there must be widespread, constant and uniform state
be out of compliance with its treaty obligations, conclud-
onment without possibility of release for those under the
corruption.[citations omitted}. As we understand it, this
practice compelled by legal obligation that is sufficiently
ing that its practice to sentence child offenders to life
age of 18 years at the time of the commission of the of-
difficulty underlies the rule forbidding psychiatrists from
long to establish the norm, notwithstanding that there
without parole violates article 24(1):
fence. A similar resolution has been introduced in Octo-
diagnosing any patient under 18 as having antisocial per-
may be a few uncertainties or contradictions in practice
Every child shall have, without any discrimination as to
ber of 2007 at the General Assembly calling again for
sonality disorder, a disorder also referred to as psychopathy
during this time.112 The International Court of Justice
race, colour, sex, language, religion, national or social ori-
abolition of LWOP sentences for juveniles.108
or sociopathy, and which is characterized by callousness,
(ICJ) has said that a very widespread and representa-
107
that rule becomes binding on all states, including those that

have not formally ratified it themselves.
tive participation in [a] convention might suffice of itself
widespread and consistent practice by states not to impose
The Human Rights Committee found that this sentence vi-
incarceration on juveniles. The Riyadh Guidelines state
to evidence the attainment of customary international
a sentence of life without parole or possibility of release for
olates the ICCPR, in evaluating the U.S. report to the Com-
that, no child or young person should be subjected to
law, provided it included participation from States whose
child offenders as a measure that is fundamental to the
mittee, as the treaty ensures that every child has the right
harsh or degrading correction or punishment,129 and the
interests were specially affected.113 Israel falls into this
basic human value of protecting the life of a child; (2) the
to such measures necessary to protect his/her status as a
U.N. Rules for the Protection of Juveniles Deprived of Their
category having voted in favor of the resolution condemn-
imposition of such sentences is relatively new and now
minor. Trying and sentencing children as adults violates
Liberty emphasizes imprisonment as a last resort and for
ing this practice in 2006 (A/61/146).
practiced by only two statesall of the other states which
that minors status. Applying a serious adult sentence to a
the shortest time possible.130
had taken up the practice have joined the global community
child also implicates article 7 of the ICCRP relating to
When customary law is said to be a jus cogens norm, no
in abolishing the sentence; and (3) there is virtually univer-
cruel, inhuman and degrading treatment, as was also sug-
Every year for the past decade, the Commission on Human
persistent objection by a state will suffice to prevent the
sal acceptance that the norm is legally binding, as codified
gested by the Committee Against Torture, discussed above.
Rights has emphasized the need for states to comply with
norms applicability to all states: according to Article 53 of
by the Convention on the Rights of the Child and else-
the Vienna Convention on the Law of Treaties it is a norm
where, and requires states to abolish this practice, as evi-
In addition to the legal prohibition recognized in the con-
should only be a measure of last resort and for the shortest
accepted and recognized by the international community of
denced by the most recent United Nations General
text of treaty law, states have reinforced their obligation to
appropriate period of time.131 Its resolutions have consis-
States as a whole as a norm from which no derogation is per-
Assembly resolution 61/146 (discussed above).
uphold this norm in a myriad of international resolutions
tently called for this compliance and in 2005 it further
and declarations over the past two decades. The General
called specifically for the abolition abolition of the juvenile LWOP sentences.132
mitted and which can be modified only by a subsequent
124
the principle that depriving juveniles of their liberty
norm of general international law having the same charac-
First, there are only two countries that are known to
Assembly resolution 61/146 of December 2006 calling for
ter.114 This definition is accepted by most legal scholars in
still practice the sentencing of juveniles to LWOP
the immediate abrogation of the LWOP sentence for juve-
and outside of the United States. Moreover, U.S. law rec-
and/or have children serving, the United States and Is-
niles in any country applying the penalty is one that grew
The recently passed GA Resolution 61/146, the 2006 Con-
ognizes that customary international law is part of domestic
rael. In Israel, not only are there no more than 7 child
from many other international legal pronouncements.
clusions and Recommendations of the Human Rights
U.S. law and binds the government of the United States.116
offenders serving LWOP, but the sentence has not been
115
Committee on the U.S. practice, the similar observations of
given to a juvenile since 2004, suggesting that the prac-
Prior to this, the General Assembly had adopted other
the Committee Against Torture, and the 2007 Committee
The International Law Commission has included this
tice is rare. Australias High Court will determine
statements on the subject which serve as evidence of
of the Rights of the Childs General Comment evidence a
principle among those in its Draft Articles on State Re-
whether it joins this group in two cases now before it,
states expectations that all members of the international
near universal consensus that has coalesced over the past
sponsibility.117 It commented that the obligations arise
as discussed in Section II of this Report. Second, the
community of states should respect this norm. In 1985, the
15 years, with accelerated pace in condemnations during
from those substantive rules of conduct that prohibit
sentence has not been consistently and historically ap-
General Assembly adopted the United Nations Standard
the past several years. Indeed, because only two countries
what has come to be seen as intolerable because of the
plied to child offenders. Even in the United States, the
Minimum Rules for the Administration of Juvenile Justice
now would apply this sentence and because 99.9% of the
threat it presents to the survival of states and their peo-
sentence was not used on a large scale until the 1990s
(known as the Beijing Rules), reiterating that the primary
cases come from only one country, the United States, the
ples and the most basic human values.118
when crime reached record levels.121 It was only be-
aim of juvenile justice is to ensure the well-being of the ju-
prohibition against the sentence can now be said to have
tween 1992 and 1995, that 40 states and the District of
venile and that confinement shall be imposed only after
reached the level of a jus cogens norm, a practice no longer
The current President of the International Court of Jus-
Columbia all passed laws increasing the options for
careful consideration and for the shortest period possi-
tolerated by the international community of states as a
tice, Honorable Rosalyn Higgins, has stated that what is
sending juveniles to adult courts.
ble.
legal penalty for children.
critical in determining the nature of the norm as a jus co-
sentence had been rarely imposed.123
122
Before this time, the
gens norm is both the practice and opinio juris of the vast
125
The Commentary to this rule indicates that puni-
tive approaches are not appropriate for juveniles and that

the well-being and the future of the offender always out-
In sum, the United States and Israel are violating interna-
weigh retributive sanctions.
tional law by allowing their courts to impose this penalty
majority of states. What is important is to look at the
Third, there is near universal acceptance that the norm is
legal expectations of the international community of na-
legally binding, as codified by CRC article 37, which pro-
tions and their practice in conformity with those expecta-
hibits life without possibility of release sentences for ju-
Similarly, in 1990 the General Assembly passed two resolu-
tions. As such, General Assembly resolutions can provide
veniles. All but two countries are party to the
tions extending protections for incarcerated juveniles: the
evidence of such expectations.
Convention (the United States and Somalia) and all but
U.N. Rules for the Protection of Juveniles Deprived of
two countries (the United States and Israel) have ended
Their Liberty127 and the U.N. Guidelines for the Prevention
The prohibition of life without parole or possibility of re-
the practice of using this sentence, and in accordance
of Juvenile Delinquency (known as the Riyadh Guide-
lease fulfills these requisites for three reasons: (1) There is
with their treaty obligations.
lines).128 Both consider the negative effects of long term
119
120
126
on children.
IV. Juvenile Justice and Rehabilitation Models
The ICCPR and the CRC provide that deprivation of lib-
reconciliation (mediation), and education programs.137
The purpose of the Family Group Conference is to establish a
There are now 8,000 Family Group Conferences held every
erty for child offenders be a measure of last resort. As
Furthermore, the German model does not restrict rehabili-
safe environment in which the young person who has com-
year in New Zealand and 83% of youth offenders are di-
previously explained, the Beijing Rules and the Riyadh
tation and justice by the nature of offence. Additionally,
mitted the offense, family members and others invited by the
verted from the criminal justice system as a result.152 Im-
Guidelines consider long-term incarceration of juvenile
felony offences (Verbrechen) can be reduced or diverted
family, the victim or a representative, a support person for the
prisonment and the use of youth justice residences have
offenders antithetical to the purpose and meaning of juve-
under certain circumstances, e. g. a robbery, if the offender
victim, the police, and a mediator or manager of the process
dropped significantly with the use of Family Group Con-
nile justice.133 There are several examples of alternative
has repaired the damage or made another form of apology
may come together to discuss the various issues. Sometimes
ferences.153 New Zealands success with this alternative to
sentencing structures focusing on rehabilitation and re-
(restitution/reparation) to the victim.138
a social worker and/or a lawyer are also present.144
juvenile sentencing provides an excellent model for other

countries to follow in seeking to lower the level of juvenile
duction of recidivism that warrant further discussion.

Prison sentences for child offenders are a sanction of last
The main goal of a Conference is to formulate a plan about
A. The German Model of Alternative Sen-
resort (ultima ratio) in line with international norms
how best to deal with the offending youth. It consists of
tencing and Juvenile Rehabilitation
including the CRC and Beijing Rules.139 For child offend-
three integral components. First, the participants seek to
C. The Georgia Justice Project Holistic
ers between 14 and 17 years of age, the minimum length of
ascertain whether or not the young person admits to the
Approach to Juvenile Rehabilitation
The German model of juvenile rehabilitation, or restora-
youth imprisonment is six months; the maximum is five
offense (this is a necessary component for the process to go
tive justice, is an example of rehabilitation as a focus to ju-
years.140 In cases of very serious crimes for which adults
forward). Next, information is shared among all the par-
In the U.S., the Georgia Justice Project (GJP) also has an in-
venile justice. In the 1970s, Germany withdrew
could be punished with more than 10 years of imprison-
ties at the Conference about the nature of the offense, the
novative approach to breaking the cycle of crime and poverty
traditional sentencing for juveniles. The conventional
ment, the maximum length of youth imprisonment is ten
effects of the offense on the victims, the reasons for the of-
with children in Atlanta, Georgia. A privately funded non-
model gave way to alternative measures in the 1970s enu-
years. Additionally, there is no possibility of death sen-
fense, any prior offending by the young person, and other
profit organization, GJP accomplishes minimized rates of re-
merated in the Juvenile Justice Act: suspensions, proba-
tences or life without possibility of release sentences for
information relevant to the dialogue. Third, the partici-
cidivism amongst juveniles by incorporating counseling,
tion, community service, and a system of day-fines.
child offenders. The low level of juvenile recidivism is a
pants decide on an outcome or recommendation.145 The
treatment, employment and education programs with its
Between 1982 and 1990, incarceration of juveniles in Ger-
testament to the success of its innovative system.
Act requires the police to comply with the recommenda-
legal services. Its rate of recidivism is 18.8%, as compared to
tions/agreements adopted and findings made by the Family
the national U.S. average of 50 to 60%.154
many decreased more than 50%.
141
134
B. The New Zealand Family Group ConIn 1990, the Juvenile Justice Act (JJA) was amended to in-
ference Provides a Viable Method of Ju-
clude additional alternatives to incarceration. In the case
venile Rehabilitation
of juvenile offenders (14-17 years), the German criminal
incarceration and recidivism rates.
Group Conference.146
Working with underprivileged minorities in the Delkalb
The New Zealand model for family group conferencing is
and Fulton counties of Georgia, GJP works with its juve-
largely inspired by traditional Maori justice practices.
nile clients to form a relationship that extends beyond
147
justice system predominately aims to educate the juvenile
New Zealand began utilizing the approach of restora-
Modern day family group conferencing incorporates tra-
legal representation. Recognizing that juvenile offenses
and provides for special sanctions. Initially, education
tive justice as an alternative for juveniles in the criminal
ditional Maori beliefs that responsibility is collective
typically indicate deeper problems such as lack of familial
and disciplinary measures are implemented. Only if un-
system in 1989 with the passage of the groundbreaking
rather than individual and redress is due not just to the
support, insufficient access or motivation for education,
successful, youth imprisonment with the possibility of
Children, Young Persons, and Their Families Act.
victim but also to the victim's family.
poverty, and lack of access to employment opportunities,
suspension and probation is used.135
The Act provides for a Family Group Conference as a
why an individual had offended was also linked to this no-
GJP works on the criminal defense of the child offender as
first step for dealing with a juvenile offender. These
tion of collective responsibility. The reasons were felt to
well as the breadth of other problems which strengthen
The current JJA emphasizes release and discharge of child
Conferences have now become the lynch-pin of the New
lie not in the individual but in a lack of balance in the of-
the likelihood of recidivism.155 Along with an attorney,
offenders when the severity of the crime is balanced with
Zealand youth justice system, both as pre-charge mech-
fender's social and family environment.149 This under-
each child offender is paired with a licensed social worker.
social and/or educational interventions that have taken
anisms to determine whether prosecution can be
standing focuses on the need to address the causes of this
As a team, the attorney, social worker and juvenile work
place.136 Included in its innovative system of juvenile justice
avoided, and also as post-charge mechanisms to deter-
imbalance in a collective manner.150 The emphasis is
together on the case. Win or lose, the juveniles team ac-
and rehabilitation, Germany equally values efforts to make
mine how to address cases admitted or proved in the
placed on restoring the harmony between the offender,
companies the juvenile through the entire process. If the
reparation to the victim, participation in victim-offender
Youth Court.
the victim, and the victim's family.
judicial proceedings result in incarceration, GJP maintains
143
142
148
151
Understanding
V.
Conclusions
and
Recommendations
close contact with the juvenile both during and after incar-
E. The Bridge City Center for Youth,
The life without parole or possibility of release (LWOP)
the past few years to more urgently bring non-complying
ceration. In this sense, GJP assists provide incentive and
Louisiana
sentence condemns a child to die in prison. It is not an
governments into compliance with international law and
appropriate or effective punishment as it has no deterrent
standards of juvenile justice, and recommend the following:
support as the child offender rebuilds his/her life. This

support is often the critical lynchpin in breaking the cycle
After finding that the Bridge City Correctional Facility
of crime and poverty.
had serious problems of abuse and youth violence, the U.S.
children have enormous potential for growth and matu-
Countries continue to denounce the practice of sentenc-
Department of Justice recommended immediate reform.
rity in passing from youth to adulthood. It further pre-
ing juveniles to life without possibility of release as against
value and contradicts our modern understanding that

157
D. The Annie E. Casey Foundations Ju-
However, it was not until the death of a child inmate and
vents society from reconsidering a childs sentence ever
international law, to condemn the practice among the re-
venile Detention Alternatives Initiative
resulting public protest that the facility began in earnest
and denies the wide expert knowledge that children are
maining governments allowing such sentencing, and to call
to restructure, and to comply with the newly enacted Ju-
susceptible to rehabilitation and redemption.
upon those where the law may be ambiguous to institute
The Juvenile Detention Alternatives Initiative program
venile Justice Reform Act. The facility was shut and re-
(JDAI), existing in 75 sites in 19 states has focused its at-
organized with the help of the Annie E. Casey Foundation
The international community has outlawed this sentenc-
and further to remove barriers to the enforcement of inter-
tention on eight core strategies to minimize juvenile
and the MacArthur Foundation, reopening in 2005. The
ing practice as a violation of state obligations to protect
national standards and expand their juvenile justice models
delinquency and rehabilitate youth. Notable strategies in-
reforms abolished the prior boot-camp style youth facility,
the status of a child and to seek recourse in criminal pun-
to focus more extensively on rehabilitation programs, in-
clude encouraging collaboration between juvenile justice
in which juvenile inmates were treated as little adults,
ishment toward more rehabilitative models of justice. The
cluding education, counseling, employment and job training
agencies and community organizations, new or enhanced
and established a home-like environment focusing on
LWOP sentence for juveniles is a direct violation of the
and social or community service programs and to evaluate
alternatives to detention (such as electronic monitoring),
therapeutic care and rehabilitation.
Convention on the Rights of the Child, Convention
these models to ensure protection of the rights of juveniles.
158
legal reforms confirming the prohibition of such sentencing;
Against Torture, and the International Covenant on Civil
case processing reforms to reduce length of stay in custody, and reducing racial disparities. While children who
Today, the center houses approximately 70 young men,
and Political Rights, as well as international customary
United States abolish this sentence under federal law
pose a danger to the community are still detained, the
ranging from 13 to 20 years old in individual dormitories
law. Countries that would impose this sentence are in vi-
and undertake efforts to bring all U.S. states into compli-
programs heart lies at stopping deviant behavior before
for about 8 to 12 individuals.
olation of their international legal obligations. Today, that
ance with U.S. international obligations to prohibit this
kids fall into a life of crime.
placed the concrete cells, are carpeted and contain color-
amounts to Israel and the United States.
sentencing, including to rectify the sentences of those juve-
159
The dormitories, which re-
ful quilts, pillows, curtains and couches to create a
nile offenders now serving LWOP; evaluate the dispropor-
In Santa Cruz, California, the 10-year-old program is con-
home-like atmosphere. Each dormitory conducts a series
The authors commend Tanzania and South Africa for their
tionate sentencing of minorities in the country and work
sidered a JDAI models. It offers health and drug-abuse
of daily circles where the young men gather to discuss
recent official agreement and clarification in removing the
more expeditiously to eradicate the widespread discrimi-
counseling, resume writing an computer classes, as well
concerns or complaints with the other kids in order to
possibility of this sentence, however, the follow-through in
nation in the countrys juvenile justice system, including to
as meditation classes and an adult mentor for advice and
come to nonviolent, group-approved solutions.
legal reform must immediately be undertaken if they are to
consider more equitable and just rehabilitation models as
guidance. Following the JDAI program, Santa Cruz has
also have daily access to education, mental health, social
come into compliance with obligations under the CRC and
described in this Report; and monitor and publish data on
seen the number of children in detention per day decrease
services and substance abuse treatments.
international law. In addition, eight other countries will
child offenders serving LWOP sentences in each state.
160
The kids
161
need to clarify the ambiguities in their own laws to confirm
from 50 to 16 on average, saving the state millions per

year. Other counties have followed suit with great suc-
The success of the Bridge City Center for Youth is being
cess. New Mexicos Bernalillo County JDAI site reduced
prohibition of the LWOP sentence for juveniles: Antigua and
Israel abolish LWOP sentences for juveniles under all
replicated throughout the state at other juvenile facilities.
Barbuda, Australia, Brunei, Cuba, Dominica, Saint Vincent
circumstances, including for political and security related
their average daily detention population by 58% between
Though relatively new, the program was commended by the
and the Grenadines, the Solomon Islands and Sri Lanka. In
crimes and that it rectify and/or clarify the sentences of
1999 and 2004, and New Jerseys Essex County lowered
Annie E. Casey Foundation and the Juvenile Justice Project
particular, Australia will need to clarify its law most urgently
the seven juveniles in question who may be serving a
its average daily population by 43% in just two years. In
as a model state juvenile facility. These and other reforms
in order to prevent at least one province from moving in the
LWOP sentence to come into compliance with their obli-
addition, Ada County, Idaho; Pierce County, Washington;
to the juvenile justice system in Louisiana contributed to a
opposite direction to allow LWOP sentences for juveniles.
gations under the CRC and international law.
and Ventura County, California have all lowered deten-
reduction from 1427 to only 611 individuals in the juvenile
tion populations by at least one-third since implementing
justice system between 2004 and 2006.163
The authors further commend the efforts of governments,
Tanzania follow through expeditiously in clarifying by
international organizations and NGOs for their efforts in
law that any child currently serving or who may be given a
the program.
162
156
E n d
N o t e s
U.N. Convention on Rights of the Child (CRC) 44 U.N. GAOR Supp (No. 49) 167; U.N. Doc. A/44/49 (1989), entered into force
Sept. 2, 1990.
2
Streib, V. and Schrempp, B., Life Without Parole for Children, at 4, Criminal Justice (Winter 2007).
3
MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Briefs # 3 and 4 (see
http://www.adjj.org/content/page.php?cat_id=2&content_id=28).
4
Id.; see also, Roper v. Simmons, 543 U.S. 551, at 572-73;125 S.Ct. 1183 (March 1, 2005).
5
Equal Justice Initiative, Cruel and Unusual: Sentencing 13- and 14- Year Old Children to Die in Prison, at 14 (EJI, Montgomery,
Alabama Nov. 2007, available at: www.eji.org (last visited Nov. 1, 2007) citing reports of the National Institute of Justice (2006) and
findings of the U.S. Congress, 42 U.S.C.A. 15601 (2003)).
6
Equal Justice Initiative, Id. at 15.
7
Christopher Hartney, Youth Under Age 18 in Adult Criminal Justice System, at 3, NCCD Fact Sheet, (NCCD, 2006).
8
The Committee Against Torture, oversight authority for the International Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (U.N.Doc A/39/51 (1984), entered into force June 26, 1987) made this observation in reviewing
the United States practice of sentencing children to life without parole in 2006 (see discussion Section III of this Report for citations).
9
Tanzania has one child offender serving a life sentence that was reported to be ineligible for parole but the government has submitted
written documentation to the authors confirming it allows parole for all children and is in process of undertaking reforms in the sentencing code so that the child in question as well as any child cannot be sentenced to a term that prohibits parole review. (See Section
II discussion on Tanzania in this Report).
10
See discussion and citations in this Report below.
11
As discussed below, there is only one Act under which an LWOP sentence could apply in Israel relating to political or security
crimes.
12
Australias circumstance is discussed in Section II of this Report.
13
Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005). The U.S. Supreme Court stated, [a]s for deterrence, it is unclear whether
the death penalty has a significant or even measurable deterrent effect on juveniles. Id. If the death penalty has no deterrent value it
is difficult to imagine that a lesser penalty of LWOP would have more of a deterrent value.
14
Krisberg, B. and Marchionna, S., Attitudes of U.S. Voters toward Youth Crime and the Justice System, Summary of National Poll
undertaken by National Council on Crime and Delinquency (Focus, NCCD Feb. 2007).
15
Only 10 countries besides the United States could be said to have laws with the potential to permit the sentence today, leaving 135
countries that have rejected the potential practice expressly by law or by official pronouncements. See, Amnesty International and
Human Rights Watch released their report, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States,
(www.hrw.org/reports/2005/us1005/TheRestofTheirLives.pdf) identifying that 14 countries out of 145 surveyed in CRC reports (the
survey included 154 countries but for 9 the information was inconclusive) had laws potentially allowing LWOP for juveniles but since
that time the authors have confirmed additional information, including on Belize.
16
U.N. General Assembly resolution 61/146 (Dec. 2006), supra note 107. A new resolution has been tabled at the United Nations including language similar to the 2006 G.A. resolution on prohibition of LWOP for juveniles (see U.N. Doc. A/C3/62/L.24 (23 Oct.
2007)).
17
Amnesty International and Human Rights Watch, supra note 15 (citing their investigation of country reports to the Committee on the
Rights of the Child and in-country investigations); the authors have also added Belize to this list. For Cuba, it has been suggested that
it is technically possible under the law to sentence a child 16 years of age to life without parole but there are no known cases. Cuban
officials with whom the authors of this report met also deny there are any child offenders serving such sentence. The authors have
also now confirmed that South Africa, Burkina Faso and Kenya now prohibit this practice. Kenya clarified to the CRC in 2007 that
these sentences were now prohibited; Burkina Faso has confirmed it applies directly the CRC prohibitions in domestic law, including
sentencing; and South Africa has indicated it no longer allows these sentences and has no child offenders serving. As discussed below,
however, it is somewhat unclear what the law provides for in South Africa, as a Child Justice Bill, which would expressly outlaw the
sentence for youths, has been pending for five years. The authors have clarified with the Director of the Presidents Office of Child
Rights, who herself clarified with officials in the Department of Corrections in the country, that there are no juvenile offenders serving this sentence in South Africa and this sentence will not be imposed in the future (in 1999, South Africa had reported to the CRC
that four juvenile offenders were serving the sentence).
18
See analysis of the U.S. and Israel, infra in this Report.
19
In 2002, Human Rights Advocates reported that 2,225 persons were serving this sentence in our report Administration of Justice
Agenda Item 13: Life Imprisonment Without Possibility of Release for Youth Offenders Who Were under the Age of 18 at the Time of
Committing the Offense, Report to the 60th Session of the UN Commission on Human Rights (citing to Victor Streib, Execution and
Life without Parole for Kids Who Kill, December, 2002 at 11). HRW clarified the numbers in its 2005 report and the authors re1
life sentence for any crime will be subject to parole review

and to further bring its juvenile justice system into compliance with its obligations under the CRC and international law.
South Africa pass without haste the Child Justice Bill to
clarify abolition of juvenile LWOP sentencing under any
circumstances.
Australia clarify the legal prohibition of LWOP sentences for juveniles and ensure that its provinces bring
their laws into compliance with obligations under the
CRC, ICCPR and other international laws.
Sentencing our Children to Die in Prison
cently begun clarifying these numbers in 2007: in Pennsylvania the number of child offenders receiving LWOP is now 433, up 101
since reported in 2005. The California Department of Corrections and Rehabilitation (CDCR) figures coupled with field investigation by Human Rights Watch indicate 47 more juveniles serving this sentence in California since a count in 2005, bringing the total in
California up to 227 juvenile offenders serving the sentence and 7 more serving in Mississippi and 1 more in Idaho (email to authors
from Elizabeth Calvin and Alison Parker, Human Rights Watch, Nov. 1, 2007). See also, Victor Streib, in his article writes, A reasonable estimate would be that the total number of juvenile offenders currently serving LWOP sentences is several thousand people. See
also, Human Rights Watch World Report 2006, sec. IV. Data compiled by Amnesty International and Human Rights Watch. Available
at http://hrw.org/wr2k6/wr2006.pdf.
20
Amnesty, supra note 15, text accompanying footnotes 61-62 in the Amnesty report. Since that report, Colorado passed a law abolishing the sentencing practice in 2006. See Appendix in this Report.
21
This analysis has updated earlier statements by NGOs and advocates. See, Appendix in this Report for more detail. Note, no national data is officially collected specifically on juvenile LWOP sentences by the U.S. government.
22
Patrick Griffin, Patricia Torbet, and Linda Szymanski, Trying Juveniles as Adults in Criminal Court: An Analysis of State Transfer
Provisions 1998 National Center for Juvenile, NCJ 172836.
23
Id.
24
Cruz, J., Juvenile Waivers and the Effects of Proposition 21, 1 Law and Society Review 29, at 38 (UCSB 2002).
25
Males, M. and Macallair, D. The Color of Justice: An Analysis of Juvenile Adult Transfers in California, at www.buildingblocksforyouth.org/colorofjustice/coj.html.
26
Hubner, John. Discarded Lives, Children Sentenced to Life Without Parole, Amnesty International Magazine (Spring 2006).
27
See e.g., Equal Justice Initiative, Cruel and Unusual: Sentencing 13- and 14- Year Old Children to Die in Prison, supra note 5.
28
Christopher Hartney, Youth Under Age 18 in Adult Criminal Justice System, NCCD Fact Sheet, (NCCD, 2006).
29
Id. at 3.
30
The Concluding Observations of the Human Rights Committee on the United States of America, 87th Session held on 27 July 2006,
(CCCPR/C/SR.2395), para. 34 (see discussion in Section III, infra).
31
Note that crime levels reached their peak in 1994 and have been declining since. See Jeffrey Fraser, Facts v. Perceptions: Superpredator theory belies crime data, 32 Children, Youth & Family Background (Newsletter to University of Pittsburgh Office of Child
Development) (June 2000), available at http://www.education.pitt.edu/ocd/publications/backgrounds/32.pdf.
32
Amnesty, supra note 15 at 2.
33
Id.
34
Id.
35
Id. (citing data from 38 states correctional departments and additional data from Alabama and Virginia and U.S. census data available at: http://www.census.gov/popest/states/asrh/files/SC-EST2003-race6-AL_MO.csv and
http://www.census.gov/popest/states/asrh/files/SC-EST2003-race6-MT_WY.csv, accessed on March 4, 2005 (2000 figures)).
36
Email correspondence with E. Calvin, and A. Parker, Human Rights Watch, September 2007; and see for an earlier set of estimates,
Amnesty International Magazine, supra note 26, at 43.
37
Juvenile Offenders and Victims: 2006 National Report, at 3,infra note 50.
38
Equal Justice Initiative, Cruel and Unusual: Sentencing Children to Die in Prison supra note 5.
39
Id.
40
Human Rights Watch Report, Thrown Away Children Sentenced to Life Without Parole in Colorado, February 2005.
41
See note 37, supra, for 0-17 years of age.
42
Deborah LaBelle, Esq., Michigan, findings from local investigation (2007).
43
D. Labelle, supra note 41.
44
Id. See infra note 50.
45
Mississippi Department of Corrections, data released via Freedom of Information Act request and updated with the Office of Capital
Defense Counsel in Mississippi, H. Thomas, NAACP, 2007.
46
National Council on Crime and Delinquency, And Justice for Some, pp. 21-22 (Jan. 2007)(hereinafter NCCD 2007).
47
The custody rate in the index is the number of juvenile offenders in detention in 2003 per 100,000 juveniles aged 10 and over to age
18 generally.
48
NCCD, 2007, supra note 46 at 24 (citing Census of Juveniles in Residential Placement 1997, 1999, 2001, and 2003. OJJDP (2005);
Online analysis package OJJDP (2006)).
49
See NDDC 2007, supra note 46.
50
Snyder and Melissa, Juvenile Offenders and Victims: 2006 National Report, at 2. Washington, D.C. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.
51
See B. Krisberg and S. Marchionna, Attitudes of Voters toward Youth Crime and the Justice System, on a national survey commissioned by NDDC (Feb. 2007, http://www.nccd-crc.org/nccd/pubs/zogby_feb07.pdf).
52
U.N. Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, and
ratified by the United States, Oct. 21, 1994, see http://www.ohchr.org/english/bodies/ratification/2.htm.
53
NCCD 2007, supra note 46 at 4.
Id.
Correspondence between Connie de la Vega and the Legal Adviser, Human Rights and Humanitarian Affairs, Permanent Mission of
Israel to the United Nations, Geneva, Switzerland, May 30-31, 2007, reporting on discussion with the Israeli Ministry of Justice. The
authors also met with officials on the subject during the March 2007session of the U.N. Human Rights Council. The report of four juvenile offenders serving life sentences was reported in a Israel State Party report to the CRC, CRC/C/8/Add.44, February 27, 2002 at
para. 1372, but Human Rights Watch identified three others: Shadi Ghawadreh, Youssef Qandil, and Anas Mussallmeh (see Amnesty,
supra note 15, at 106).
56
Israels Report to the CRC, CRC/E/8/Add. 44 (2002), available at: http://www.ohchr.org/english/bodies/crc/past.htm#31.
57
Id. The cases in question are reported as Shadi Ghawadreh, Youssef Qandil, and Anas Mussallmeh (see Amnesty, supra note 15, at
106).
58
Id. at 106, fn. 322 (citing Huk Shihror, Al Tnai Mimasar, and Hatashsa, 2001, Article 29).
59
Id.
60
The authors are seeking to further clarity the status with country officials. See also, correspondence between Connie de la Vega and
the Legal Adviser, Human Rights and Humanitarian Affairs, Permanent Mission of Israel to the United Nations, Geneva, Switzerland,
May 30-31, 2007, reporting on discussion with the Israeli Ministry of Justice. The authors also met with officials on the subject during the March 2007session of the U.N. Human Rights Council.
61
See e.g., Authors Special Report on Human Rights Violations in Sentencing: Imprisoning Children for Life without Possibility of Release (March 2007), submitted to the 4th Session, Human Rights Council, March 2007.
62
Email to Michelle Leighton from Joyce Kafanabo, Minister Plenipotentiary, Permanent Mission of the United Republic of Tanzania,
October 13, 2007, indicating that in all cases where a child is sentenced to life imprisonment, the child welfare department appeals to
higher courts immediately which in all circumstances either reduces the sentence or releases the child.
63
Two children were released recently and one is receiving a parole hearing at the time of writing. Email and telephone correspondence with Tanzanian Embassy officials, written documentation and correspondence on file with the authors from September 28-October 15, 2007.
64
See written communication from Tanzanian Embassy to Center for Law and Global Justice, USF School of Law, October 15, 2007;
a series of meetings and telephone discussions occurred between Ambassador Mahiga, other Tanzanian officials and Ms. Leighton,
initiated by Nick Imparato of the USF School of Business and Management. The one child serving LWOP was first identified by
Human Rights Watch and Amnesty International in 2005 ( see Amnesty, supra note 9, at 106 citing email correspondence to HRW
from Erasmina Masawe, attorney, Legal and Human Rights Centre in Dar es Salaam, Tanzania, in July 2004, regarding the high profile case of a 17-year-old convicted of rape).
65
Id.
66
See, written communication from Tanzanian Embassy to Center for Law and Global Justice, USF School of Law, supra note 64.
67
For example, a child committing murder in Tanzania is subject to 10 years imprisonment before a request for probation can be made
but under the SOSPA, courts apply less discretionary and harsher sentences.
68
SOSPA, Section 6 (2)and (3). Interpretation of the Act provided by Tanzanian embassy officials and lawyers in meeting of Michelle
Leighton with Ambassador Augustine Mahiga, Ministers Plenepotentiare Joyce Kafanabo and Modest Mero, and Second Secretary
Tully Waipopo, September 28, 2007, Embassy of the Republic of Tanzania New York, N.Y.
69
A copy of the proposed bill on file with the authors.
70
Id.
71
South Africa State Party report to the CRC, CRC/C/51/Add.2, May, 22, 1999 at 514 (reporting four child offenders serving the sentence).
72
Telephone interview with official representatives of the Office on the Rights of the Child, Office of the Presidency, Government of
South Africa, May and June 2007, notes on file with the authors; see 2nd Childrens Rights Country Report to: The United Nations
Committee on the Rights of the Child, August 2006, The Presidency of Republic of South Africa.
73
Written correspondence between the Head of the South African Presidents Office on Rights of the Child and Michelle Leighton,
August 1-2, 2007, and telephone conferences with officials in the Department of Justice and Foreign Ministry on file with the authors.
74
See Draft Child Justice Bill, Republic of South Africa para. 72 (1) No sentence of life imprisonment may be imposed on a child.
Available at http://www.pmg.org.za/bills/020808childjusticebill.htm.
75
Do minimum sentences apply to juveniles? Article 40, vol. 7, no. 1 5/2005, available at
http://www.communitylawcentre.org.za/Projects/Childrens-Rights/Article-40/article-40-archives/article_40_2005_05_vol7_1.pdf
76
Sapa, IFP slams release of former death-row inmates, Mail and Guardian Online, 4 Jan. 2007.
77
Meetings and correspondence between officials of Kenya (Deputy Permanent Representative to the U.N., Geneva, Switzerland) and
official delegates of Burkina Faso; also in follow-up correspondence with Michelle Leighton March 23-28, 2007.
78
See, infra, note 100.
79
Correspondence between Michelle Leighton and Burkina Faso official representative in the Mission in Geneva, Switzerland March
23-28, 2007, confirming statements of officials in meetings at the U.N. Human Rights Council session, March 2007.
80
Meeting between Michelle Leighton and other HRA delegates and Kenyan delegation head during March 2007 Human Rights
Council meeting, identifying its official statements to the CRC.
54
55
This is found in Kenyas section 18(2) of the Childrens Act. See also, Report to the Committee on Rights of the Child, Second Periodic Report of State Parties, April 4, 2006 (CRC/C/KEN/2) at 38, para 146 provided at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.KEN.2.En?OpenDocument.
82
The authors have met with officials from most countries listed in this report, including in 2007 during the U.N. Human Rights Council session and in follow-up correspondence, and have clarified state practice as presented in this Report, and added Belize to this list.
For an earlier list of countries with reported laws on LWOP for juveniles, see Amnesty, supra note 15, at 106, footnote 319. For nine
out of the 154 countries researched, the authors were unable to obtain the necessary sources to determine whether or not the sentence
exists in law, and if it does, whether or not it is imposed.
83
With respect to Cuba, a reform bill is pending that which would create a juvenile justice system but the present law is still unclear
as to whether juvenile offenders could possibly, at some point in the future, be sentenced to LWOP.
84
Second and Third report to the CRC by Government of Australia, September 2003, at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.129.Add.4.En?OpenDocument.
85
Correspondence between Michelle Leighton and officials in the Australian Government Institute of Criminology (AIC), Canberra,
Australia, September 18-30, 2007. According the AIC, under section 20C(1) of the Crimes Act 1914 a child or young person who is
charged with or convicted of a Commonwealth offence may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory in which the person is tried. This enables young federal offenders to be dealt with in accordance with the juvenile justice systems established in each State or Territory. Most State and Territory juvenile justice legislation
contains maximum terms of detention that may be imposed on juveniles - i.e. the NT Juvenile Justice Act 2005 provides that a term of
detention imposed on a juvenile must not exceed 2 years (if the juvenile is over 15 years of age) or 1 year (if the juvenile is less than
15). The NT legislation also says a non-parole period must be set if the sentence is over 12 months. In Victoria, the Children, Youth
and Families Act 2005 provides that a maximum term of 1 years detention can be imposed on a juvenile between the age of 10 and 15,
and a maximum of 2 years for juveniles over 15 years of age. Therefore if a juvenile federal offender is dealt with under section
20C(1) of the Crimes Act in accordance with the juvenile justice system of the State or Territory in which the offender is charged it is
unlikely that it would be possible for the juvenile to receive a sentence of life imprisonment without parole. However, section 20C of
the Crimes Act does not preclude a juvenile federal offender being sentenced under Part 1B of the Crimes Act (i.e. a juvenile federal
offender can be sentenced as an adult under the Crimes Act). In such circumstance it would be possible (although unlikely) for a child
charged with a Commonwealth offence with a maximum sentence of life imprisonment to be sentenced to life imprisonment without
parole. Paragraph 19AB(1)(b) of the Crimes Act provides that where a court imposes a federal life sentence, or any federal sentence
exceeding three years, the court must fix either a single non-parole period for that sentence or make a recognisance release order (release on a good behaviour bond). However, the court may decide not to fix a non-parole period or make a recognisance release order
if the court considers it is inappropriate to do so in the circumstances (subsection 19AB(3)). If the court decides not to fix a non-parole
period or make a recognisance release order then the court must give its reasons for doing so and cause these reasons to be entered into
the court records (subsection 19AB(4)).
86
Committee on Rights of the Child Concluding Remarks to 3rd Report submitted by Australia to the Committee, CRC/C/15/Add. 268,
para 17 (2005). It urged Australia to make reforms to this law before its next report due January 15, 2008. Id. at para 18.
87
Concluding Observations of Committee on Rights of the Child on Australias report to the Committee regarding its compliance with
the treaty, paras 9,10, and see para 73, CRC/C/15/Add.268, 20 October 2005.
88
Elliott v The Queen (S218/2007). These cases concern the New South Wales Crimes (Sentencing Procedure) Act of 1999. The
High Court heard oral argument in September 2007 but it is uncertain when the cases will be decided. The transcript of the High
Court hearing is at: http://www.austlii.edu.au/au/other/HCATrans/2007/538.html.
89
Id. Blessington v The Queen(S218/2007).
90
Id. The High Court heard oral argument in September, 2007 and has now reserved the cases for decision (See High Court of
Austalia Bulletin 2007, No. 10, 31 Oct. 2007 (http:/www.austlii.edu.au/other/hca/bulletin/hcab0710.html#internal50). The transcript
of the High Court hearing is at: http://www.austlii.edu.au/au/other/HCATrans/2007/538.html.
91
U.N.Doc A/44/49 (1989), entered into force September 2, 1990, ratified by Australia Dec. 17, 1990
(http://www.ohchr.org/english/bodies/ratification/11.htm).
92
Concluding Observations Committee on Rights of the Child on Australias report to the Committee regarding its compliance with
the treaty, paras 9,10, and see para 73. CRC/C/15/Add.268, 20 October 2005.
93
International Covenant on Civil and Political Rights (ICCPR), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force
March 23, 1976; Australia ratified the treaty Aug. 13, 1980 (http://www.ohchr.org/english/bodies/ratification/4.htm).
94
Also problematic is that many states integrate youthful violent offenders with adult state prison populations beginning at age 16. See
Profile of State Prisoners under Age 18, 1985-1997, 2000 US Bureau of Justice Statistics, Doc no. NCJ 176989. The youths are at
increased risk for sexual assault, violent assault and suicide. See Amnesty, supra note 15, at 1.
95
The United States, a number of the Caribbean Islands and formerly Tanzania referred to in this report as having the possibility of
LWOP were colonies inheriting the English common law tradition. It is noted in this report that the sentence of LWOP is not a tradition of common law but a recent phenomenon adopted in the past decade and half in addressing juvenile crime rates.
96
See Amicus Brief in support of Respondent, submitted to the U.S. Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005) for the
81
Committee of the Bar of England and Wales, Human Rights Advocates, Human Rights Watch, and the World Organization for Human
Rights USA, by lead attorney Prof. Connie de la Vega, at 9-11 (July 2004)(brief cited twice by the U.S. Supreme Court in its decision).
97
Id. at 10 citing R. v Secretary of State for the Home Department Ex parte Venables (1998) A.C. 407 HL at 521 and 532, referring to
Lord Steyn and Lord Hope of Craighead.
98
See discussion earlier in text of both the U.S. and Tanzania where LWOP sentences for children evolved rapidly in the 1990s as laws
emerged to allow children to be tried in court as adults.
99
Art. 37, Convention on the Rights of the Child, U.N. G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167Convention,
U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
100
Committee on the Rights of the Child, General Comment No. 10: Childrens Rights in Juvenile Justice, at para.4(c), UN Doc. No.
CRC/C/GC/10 (9 February 2007)(unedited version).
101
Id. at para. 21.
102
International Covenant on Civil and Political Rights (ICCPR), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force
March 23, 1976.
103
U.S. ratified the ICCPR in June 8, 1992 (http://www.ohchr.org/english/bodies/ratification/4.htm). In its ratification of the ICCPR
the U.S. stated, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article 14. See, http://www.ohchr.org/english/bodies/ratification/4_1.htm.
104
The Committee Concluding Observations of the Human Rights Committee on the United States of America, 87th Sess. Held on 27
July 2006, (CCCPR/C/SR.2395), para. 34.
105
International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (U.N.Doc A/39/51
(1984), entered into force June 26, 1987)(ratified by the U.S. Oct. 21, 1994, http://www.ohchr.org/english/bodies/ratification/9.htm.
See, Committee Against Torture, 36th Session, Conclusions and Recommendations of the Committee Against Torture: United States
of America, at para. 35, UN Doc. No. CAT/C/USA/CO/2, 25 July 2006.
106
See discussion of U.S. practice, supra, text accompanying notes 18-32, Section II; see also Amnesty report, supra note 15.
107
General Assembly Resolution 61/146, Promotion and protection of the rights of children, Para. 31(a), UN Doc. No.
A/Res/61/146. (19 Dec. 2006), passed by the Third Committee November 22, 2006, 176 to 1 opposed, the United States.
108
Resolution tabled at the U.N. General Assembly, Third Committee, para. 34, U.N. Doc. A/C.3/62/L.24 (23 Oct. 2007).
109
Roper v. Simmons, 543 U.S. 551 (2005), 125 S.Ct. 1183 (2005).
110
Id.
111
Id.
112
Anglo-Norweigian Fisheries case (U.K. v. Norway), 1951 I.C.J. 116, 138-39; Military and Paramilitary Activities in and against
Nicaragua case (Nicaragua v. U.S.), 1986 I.C.J. 14, 98, para. 186.
113
North Sea Continental Shelf cases (FRG v. Denmark; FRG v. Netherlands) 1969 I.C.J. 3, paragraphs. 73-4 (finding that although
the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.).
114
United Nations, Treaty Series, vol. 1155 at 331; 1155 U.N.T.S. 331, 352 (1969) [emphasis added]. The
115
See, e.g., The Restatement (Third) of Foreign Relations Law, Section n102 (1986); Sean Murphy, Principles of International Law at
82 (Thompson/West, St. Paul, Minn., 2006).
116
See, e.g., U.S. Supreme Court decision in The Paquete Habana, 175 U.S. 677, 699 (1900).
117
See Art. 40, and the Commentary, Draft Articles on Responsibility of States for Internationally Wrongful
Acts,http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
118
Id., see ILC Commentary, para. 3 to Art. 40.
119
See, Rosalyn Higgins, Problems and Process, at 22 (Oxford University Press, 1994).
120
Id. at 23.
121
Note that crime levels reached their peak in 1994 and have been declining since. See Jeffrey Fraser, Facts v. Perceptions: Superpredator theory belies crime data, 32 Children, Youth & Family Background (Newsletter to University of Pittsburgh Office of Child
Development) (June 2000), available at http://www.education.pitt.edu/ocd/publications/backgrounds/32.pdf.
122
Id.
123
From 1962 until 1981, an average of 2 youth offenders in the US entered prison each year with life without parole sentences. See
Amnesty, supra note 15, at 31.
124
Concluding Observations of the Human Rights Committee on the United States of America, 87th Session held on 27 July 2006,
(CCCPR/C/SR.2395), para. 34.
125
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Resolution 40/33, 29 November 1985
at para. 17.1(b).
126
Id., Beijing Rules Commentary to Rule 17.1(d).
127
United Nations Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Resolution 45/113, 14 December 1990,
Riyadh Guidelines, G.A. Resolution 45/112, 1990, at para. 46.

Id. at article 54.
130
United Nations Rules for the Protection of Juveniles Deprived of their Liberty, supra note 125, at articles 1 & 2.
131
Human rights in the administration of justice, in particular of children and juveniles in detention, Commission on Human Rights
Resolution 1996/32, 52nd Session, E/CN.4/RES/1996/32; Human rights in the administration of justice, in particular of children and
juveniles in detention, Commission on Human Rights Resolution 1998/39, 54th Session, E/CN.4/RES/1998/39; Rights of the Child,
Commission on Human Rights Resolution 1999/80, 55th Session, E/CN.4/RES/1999/80; Rights of the Child, Commission on
Human Rights Resolution 2000/85, 56th Session, E/CN.4/RES/2000/85; Rights of the Child, Commission on Human Rights Resolution 2001/75, 57th Session, E/CN.4/RES/2001/75; Rights of the Child, Commission on Human Rights Resolution 2002/92, 58th Session, E/CN.4/RES/2002/92; Rights of the Child, Commission on Human Rights Resolution 2003/86, 59th Session,
E/CN.4/RES/2003/86; Rights of the Child, Commission on Human Rights Resolution 2004/48, 60th Session, E/CN.4/RES/2004/48.
The Commission was replaced thereafter by the Human Rights Council which has only in 2007-08 has begun to adopt thematic resolutions again.
132
Id. See, Rights of the Child, Commission on Human Rights Resolution 2005/44, 61st Session, E/CN.4/RES/2005/44.
133
The institutionalization of young persons should be a measure of last resort and for the minimum necessary period, and the best interests of the young person should be of paramount importance. Riyadh Guidelines, supra note 125 at para. 46.
134
Based on the presentation of Dr. Christian Pfeiffer to the National Institute of Justice, Alternative Sanctions in Germany: An
Overview of Germanys Sentencing Practices. Published February 1996, at http://www.ncjrs.org/txtfiles/germany.txt.
135
Lars Horst, Rehabilitation of Juvenile Offenders in South Africa and Germany, A Comparison, 2005, page 9. Available at
http://lawspace.law.uct.ac.za:8080/dspace/bitstream/2165/52/1/HorstL+2005.pdf; see also JJA 9, 13, 21, and 27.
136
Prof. Dr. Frieder Dnkel, Juvenile Justice in Germany: Between Welfare and Justice, March 2004, citing Juvenile Justice Act
45 (1) and (2). Available at http://www.esc-eurocrim.org/files/juvjusticegermany_betw_welfar_justice.doc.
137
Id.
138
Prof. Dr. Frieder Dnkel, Juvenile Justice in Germany: Between Welfare and Justice, March 2004, The situation is different in
the general penal law for adults (18 or 21 years old) where diversion according to 153 ff. of the Criminal Procedure Act is restricted
to misdemeanours. Felony offences (i.e. crimes with a minimum prison sentence provided by law of one year) are excluded. Available at http://www.esc-eurocrim.org/files/juvjusticegermany_betw_welfar_justice.doc.
139
See JJA 5 (2), 17 (2), supra note 125; see also Beijing Rules, para. 17.1 (supra note 125) which restricts youth imprisonment to
cases of serious violent crimes or repeated violent or other crimes if there seems to be no other appropriate solution.
140
Prof. Dr. Frieder Dnkel, Juvenile Justice in Germany: Between Welfare and Justice, March 2004. Available at http://www.esceurocrim.org/files/juvjusticegermany_betw_welfar_justice.doc.
141
Id.
142
Available at
http://www.legislation.govt.nz/libraries/contents/om_isapi.dll?clientID=2287950539&infobase=pal_statutes.nfo&jump=a1989024&softpage=DOC).
143
New Zealand Ministry of Justice, available at http://www.justice.govt.nz/youth/fgc.html).
144
Morris, Allison and Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group Conferences as a Case Study. Western
Criminology Review 1 (1) 1998, available at http://wcr.sonoma.edu/v1n1/morris.htm).
145
Id.
146
Children, Young Persons, and Their Families Act 1989 35.
147
Morris, Allison and Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group Conferences as a Case Study. Western
Criminology Review 1 (1) 1998, available at, http://wcr.sonoma.edu/v1n1/morris.htm).
148
Id.
149
Id.
150
Id.
151
Id.
152
Becroft, Judge AJ, Youth Justice Family Group Conferences: A Quick Nip and Tuck or Transplant Surgery - What Would the
Doctor Order in 2006?, 2006, page 8, available at http://www.cyf.govt.nz/documents/becroft_paper.pdf).
153
Id.
154
Georgia Justice Project, available at http://www.gjp.org/programs. Note, however, this statistic includes juvenile and adult clients.
155
Id.
156
See, Juvenile Detention Alternatives website, at http://www.aecf.org/initiatives/jdai/.
157
Letter to Louisiana Governor, Mike Foster from Deval Patrick, Assistant Attorney General, Civil Rights Devision:
http://www.usdoj.gov/crt/split/documents/lajuvfind3.htm .
158
The American Prospect: Bayou Betterment: In Louisiana, a New Juvenile Justice System Is Emerging, with the Governors Strong
Support, (September 1, 2005): http://goliath.ecnext.com/coms2/gi_0199-4770606/Bayou-betterment-in-Louisiana-a.html.
159
Id.
128
129
Id.
Governor of Louisianas Website. News Report: Gov. Kathleen Blanco: Bridge City Dedication (July 14, 2005):
http://gov.louisiana.gov/index.cfm?md=newsroom&tmp=detail&articleID=857.
162
The Juvenile Justice Project, Annual Report 2005-2006: http://www.jjpl.org/ar06.pdf.
163
Statistics from the State of Louisianas Office of Youth Development Website: Profile of Recidivism in Office of Youth Development, http://www.oyd.louisiana.gov/statistics-05-oyd/1f.pdf.
160
161
A p p e n d i x
AT A GLANCE
Juvenile LWOP Laws in the United States
Prepared By:
Michelle Leighton
44 states allow JLWOP

12 states and the District of Colombia either do not allow
or do not appear to practice JLWOP sentences.
Center for Law and Global Justice

Director Human Rights Programs
mleighton@usfca.edu
San Francisco, CA
Brian Foley
Visiting Associate Professor of Law
Drexel University College of Law
Philadelphia, PA
bjfolz@yahoo.com
6 States and D.C. prohibit it:

Alaska, Colorado, Kansas, Kentucky, New Mexico, Oregon, D.C.
5 States have no children known to be serving the sentence
though they allow JLWOP on books
Maine, New Jersey, New York, Utah, Vermont
1 state applies only at 16 or above
Indiana
2 states apply only at age 15 or above
Louisiana and Washington
Special Legal Assistance:

Bradley Bridge, Assistant Defender, Defender Association of Philadelphia, PA
Jill Fukunaga, USF School of Law, Law Librarian, San Francisco, CA
Jennifer Porter, Legal Intern, Center for Law and Global Justice, USF Law School
Additional Thanks to:
Tim Arnold, Manager, Juvenile Post Disposition Branch, and Kathleen Schmidt,
Public Advocate, Department of Public Advocacy, Kentucky
Mary Ellen Johnson, Pendulum Foundation, Colorado
Marsha Levick, Legal Director Juvenile Law Center, Philadelphia, PA
Lia Monahon, Equal Justice Works Fellow, Childrens Law Center of Massachusetts
Alison Parker and Elizabeth Calvin, Human Rights Watch, California
Bryan Stevenson, Equal Justice Initiative, Montgomery, Alabama
This survey of state law was undertaken by the authors to identify
the most current laws and clarify discrepancies in earlier analyses within
13 states apply only at age 14 or above

Alabama, Arizona, Arkansas, California, Connecticut, Iowa, Massachusetts
Minnesota, New Jersey, North Dakota, Ohio, Utah, Virginia
8 States apply only at age 13 or above
Georgia, Hawaii, Illinois, Mississippi, New Hampshire,
North Carolina, Oklahoma, Wyoming
Missouri and Montana
South Dakota, Texas, Vermont, Wisconsin
1 State applies at age 8 or above
Nevada
various legal reports. The authors are seeking feedback from

legal scholars and advocates in an effort to ensure the information is
as accurate as possible before publication.
13 states could apply LWOP at ANY age

Delaware, Florida, Idaho, Maine, Maryland, Michigan,
Nebraska, New York, Pennsylvania, Rhode Island, South Carolina,
Tennessee, West Virginia
Sentencing Our Children to Die in Prison
U.S. Department of Justice

Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
Juvenile Suicide in
Confinement
A National Survey
Report
U.S. Department of Justice
810 Seventh Street NW.

Washington, DC 20531
Eric H. Holder, Jr.

Attorney General
Laurie O. Robinson
Acting Assistant Attorney General
Jeff Slowikowski
Acting Administrator

Innovation Partnerships Safer Neighborhoods
www.ojp.usdoj.gov

www.ojp.usdoj.gov/ojjdp
This report was prepared by the National Center on Institutions and Alternatives, and was supported by grant number
1999JNFX0005 from the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs,
U.S. Department of Justice.
Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official
positions or policies of OJJDP or the U.S. Department of Justice.
The Office of Juvenile Justice and Delinquency Prevention is a component of the Office of Justice
Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the
Community Capacity Development Office; the National Institute of Justice, the Office for Victims
of Crime; and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking (SMART)
Juvenile Suicide in Confinement:
A National Survey
OJJDP Report
Lindsay M. Hayes
National Center on Institutions and Alternatives
February 2009
NCJ 213691
Acknowledgments
Staff collaboration is a critical ingredient in an effective suicide prevention program. The task of
completing the first national survey of juvenile suicide in confinement could not have been
accomplished without the collaborative efforts of a project team comprising prominent juvenile justice
practitioners and researchers. The teamwhich included G. David Curry, Ph.D., Department of
Criminology, University of Missouri-St. Louis; Robert E. DeComo, Ph.D., Director of Research,
National Council on Crime and Delinquency; Barbara C. Dooley, Ph.D., former Director, Madison
County (TN) Juvenile Court Services; Cedrick Heraux, Ph.D. candidate, School of Criminal Justice,
Michigan State University; and David W. Roush, Ph.D., Director, Center for Research and Professional
Development, Michigan State Universitywas instrumental in the design of the data collection
instruments, analysis of the data, and review of the draft report. Alice Boring of the National Center on
Institutions and Alternatives brought the report together in its final form.
In addition, the Council of Juvenile Correctional Administrators (CJCA) and the National Juvenile
Detention Association (NJDA), provided invaluable assistance in endorsing the project and encouraging
juvenile facility directors to participate in the survey, as well as in reviewing the draft. Special thanks is
extended to CJCAs Edward J. Loughran, Kim Godfrey, and Robert Dugan and NJDAs Earl L. Dunlap
and Michael A. Jones.
The support of officials and staff at the Office of Juvenile Justice and Delinquency Prevention, in
particular, Program Managers Karen Stern and Phelan Wyrick, is appreciated.
Juvenile Suicide in Confinement: A National Survey
Table of Contents
Acknowledgments........................................................................................................................................ i
List of Tables ............................................................................................................................................. iv
Executive Summary .................................................................................................................................. vii
Introduction..................................................................................................................................................1
Prevalence ..............................................................................................................................................1
Risk Factors ...........................................................................................................................................1
Mental Disorders and Substance Abuse ..........................................................................................1
Physical, Sexual, and Emotional Abuse ..........................................................................................2
Self-Injurious Behavior....................................................................................................................3
Provision of Mental Health Services in Juvenile Facilities ...................................................................4
Surveillance Data on Adult and Juvenile Suicide..................................................................................4
Data Collection ............................................................................................................................................6
Phase 1 ...................................................................................................................................................6
Phase 2 ...................................................................................................................................................7
Findings........................................................................................................................................................9
Personal Characteristics of the Victim...................................................................................................9
Race..................................................................................................................................................9
Sex....................................................................................................................................................9
Age.................................................................................................................................................10
Living Arrangement Before Confinement .....................................................................................10
Most Serious Offense.....................................................................................................................11
Additional Charges ........................................................................................................................11
Confinement Status ........................................................................................................................11
Most Serious Prior Offenses ..........................................................................................................12
Length of Confinement (Before Suicide) ......................................................................................12
Substance Abuse ............................................................................................................................13
Medical Problems ..........................................................................................................................13
Emotional Abuse............................................................................................................................14
Physical Abuse ...............................................................................................................................14
Sexual Abuse .................................................................................................................................14
Mental Illness .................................................................................................................................15
Prior Suicidal Behavior ..................................................................................................................15
History of Room Confinement.......................................................................................................15
Suicide Incident Characteristics ...........................................................................................................16
Date ................................................................................................................................................16
Time ...............................................................................................................................................16
Method, Instrument, and Anchoring Device..................................................................................17
Intoxication ....................................................................................................................................18
ii
Room Assignment..........................................................................................................................18
Time Span ......................................................................................................................................18
Room Confinement........................................................................................................................18
Suicide Precaution Status...............................................................................................................19
Assessment by Qualified Mental Health Professional ...................................................................19
Juvenile Facility Characteristics ..........................................................................................................20
Facility Type and Population .........................................................................................................20
Written Suicide Prevention Policy.................................................................................................21
Intake Screening for Suicide Risk..................................................................................................21
Suicide Prevention Training ..........................................................................................................21
Certification in Cardiopulmonary Resuscitation ...........................................................................22
Suicide Precaution Protocol ...........................................................................................................22
Safe Housing ..................................................................................................................................23
Mortality Review ...........................................................................................................................23
Special Considerations...............................................................................................................................25
Comprehensive Suicide Prevention Programming ..............................................................................25
Room Confinement..............................................................................................................................26
Corrective Action .................................................................................................................................28
Conclusion .................................................................................................................................................30
Comprehensive Suicide Prevention Programming ..............................................................................30
Staff Training .......................................................................................................................................32
Detention Centers.................................................................................................................................32
Data Limitations...................................................................................................................................33
Research...............................................................................................................................................34
Challenges............................................................................................................................................34
Notes ..........................................................................................................................................................35
References..................................................................................................................................................38
Appendix A: Phase 1 Survey Instrument...................................................................................................45
Appendix B: Phase 2 Survey Instrument ...................................................................................................48
iii
List of Tables
Table 1: Sources Used To Identify the Number of Juvenile Suicides in Confinement, 19951995 ...........7
Table 2: Suicides in Juvenile Facilities, 19951999, by Victims Race and Facility Type ........................9
Table 3: Suicides in Juvenile Facilities, 19951999, by Victims Sex and Facility Type ........................10
Table 4: Suicides in Juvenile Facilities, 19951999, by Victims Age and Facility Type ........................10
Table 5: Suicides in Juvenile Facilities, 19951999, by Victims Living Arrangement (Before
Confinement) and Facility Type ..........................................................................................................10
Table 6: Suicides in Juvenile Facilities, 19951999, by Victims Most Serious Offense and
Facility Type ........................................................................................................................................11
Table 7: Suicides in Juvenile Facilities, 19951999, by Victims Confinement Status and
Facility Type ........................................................................................................................................12
Table 8: Suicides in Juvenile Facilities by Victims With Prior Offenses, 19951999, by Victims Most
Serious Prior Offense and Facility Type ..............................................................................................12
Table 9: Suicides in Juvenile Facilities, 19951999, by Victims Length of Confinement (Before
Suicide) and Facility Type ...................................................................................................................13
Table 10: Suicides in Juvenile Facilities, 19951999, by Victims History of Substance Abuse and
Facility Type ........................................................................................................................................13
Table 11: Suicides in Juvenile Facilities, 19951999, by Victims History of Medical Problems and
Facility Type ........................................................................................................................................13
Table 12: Suicides in Juvenile Facilities, 19951999, by Victims History of Emotional Abuse and
Facility Type ........................................................................................................................................14
Table 13: Suicides in Juvenile Facilities, 19951999, by Victims History of Physical Abuse and Facility
Type .....................................................................................................................................................14
Table 14: Suicides in Juvenile Facilities, 19951999, by Victims History of Sexual Abuse and Facility
Type .....................................................................................................................................................14
Table 15: Suicides in Juvenile Facilities, 19951999, by Victims History of Mental Illness and Facility
Type .....................................................................................................................................................15
Table 16: Suicides in Juvenile Facilities, 19951999, by Victims Prior Suicidal Behavior and Facility
Type .....................................................................................................................................................15
iv
Table 17: Suicides in Juvenile Facilities, 19951999, by Victims History of Room Confinement and
Facility Type ........................................................................................................................................16
Table 18: Suicides in Juvenile Facilities, 19951999, by Year of Suicide and Facility Type ..................16
Table 19: Suicides in Juvenile Facilities, 19951999, by Time of Suicide and Facility Type ..................17
Table 20: Suicides by Hanging in Juvenile Facilities, 19951999, by Instrument Used and
Facility Type ........................................................................................................................................17
Table 21: Suicides by Hanging in Juvenile Facilities, 19951999, by Anchoring Device Used and
Facility Type ........................................................................................................................................17
Table 22: Suicides in Juvenile Facilities, 19951999, by Time Span Between Last Observation and
Finding Victim and Facility Type ........................................................................................................18
Table 23: Suicides in Juvenile Facilities, 19951999, by Victims Room Confinement Status and
Facility Type ........................................................................................................................................18
Table 24: Suicides in Juvenile Facilities, 19951999, by Victims Suicide Precaution Status and
Facility Type ........................................................................................................................................19
Table 25: Suicides in Juvenile Facilities, 19951999, by Victims Assessment by a Qualified Mental
Health Professional (QMHP) and Facility Type ..................................................................................19
Table 26: Suicides in Juvenile Facilities by Victims Who Were Assessed by a Qualified Mental
Health Professional (QMHP), 19951999, by Time of Victims Last Contact With QMHP and
Facility Type ........................................................................................................................................20
Table 27: Suicides in Juvenile Facilities, 19951999, by Population of Facility and Facility Type.........20
Table 28: Suicides in Juvenile Facilities, 19951999, by Facilitys Maintenance of a Written Suicide
Prevention Policy and Facility Type ....................................................................................................21
Table 29: Suicides in Juvenile Facilities, 19951999, by Intake Screening of Victim for Suicide Risk
and Facility Type .................................................................................................................................21
Table 30: Suicides in Juvenile Facilities, 19951999, by Facilitys Provision of Suicide Prevention
Training and Facility Type...................................................................................................................21
Table 31: Suicides in Juvenile Facilities That Provide Suicide Prevention Training, 19951999, by
Frequency of (Annual) Training and Facility Type .............................................................................22
Table 32: Suicides in Juvenile Facilities That Provide Suicide Prevention Training, 19951999, by
Duration of Training and Facility Type ...............................................................................................22
Table 33: Suicides in Juvenile Facilities, 19951999, by Staff Certification in Cardiopulmonary
Resuscitation (CPR) and Facility Type................................................................................................22
Table 34: Suicides in Juvenile Facilities, 19951999, by Facilitys Maintenance of a Suicide Precaution
Protocol and Facility Type...................................................................................................................23
Table 35: Suicides in Juvenile Facilities That Maintain a Suicide Prevention Protocol, 19951999, by
Highest Frequency Level of Observation and Facility Type ...............................................................23
Table 36: Suicides in Juvenile Facilities, 19951999, by Facilitys Provision of Safe Housing for
Suicidal Youth and Facility Type ........................................................................................................23
Table 37: Suicides in Juvenile Facilities, 19951999, by Mortality Review of Suicide and
Facility Type ........................................................................................................................................24
Table 38: Suicides in Juvenile Facilities, 19951999, by Number of Suicide Prevention Components
Implemented by the Facility and Facility Type ...................................................................................26
vi
Executive Summary
Although youth suicide in the community has been identified as a major public health problem, juvenile
suicide in confinement has received scant attention. The Office of Juvenile Justice and Delinquency
Prevention (OJJDP) awarded a contract to National Center on Institutions and Alternatives to conduct
the first national survey on juvenile suicide in confinement. The primary goal was to determine the
extent and distribution of juvenile suicides in confinement (i.e., juvenile detention centers, reception
centers, training schools, ranches, camps, and farms). The survey gathered descriptive data on the
demographic characteristics of each victim, the characteristics of the incident, and the characteristics of
the juvenile facility in which the suicide took place.
The study identified 110 juvenile suicides occurring between 1995 and 1999. Data was analyzed on 79
cases. Of these 79 suicides, 41.8 percent occurred in training school/secure facilities, 36.7 percent in
detention centers, 15.2 percent in residential treatment centers, and 6.3 percent in reception/diagnostic
centers. Almost half (48.1 percent) the suicides occurred in facilities administered by state agencies,
39.2 percent took place in county facilities, and 12.7 percent occurred in private programs. Highlights of
the data include:
More than two-thirds (68.4 percent) of victims were Caucasian.
A substantial majority (79.7 percent) of victims were male.
Average (mean) age of victims was 15.7, with more than 70 percent of victims ages 1517.
A sizable number (38.0 percent) of victims were living with one parent at time of confinement.
More than two-thirds (69.6 percent) of victims were confined for nonviolent offenses.
Approximately two-thirds (67.1 percent) of victims were held on commitment status at time of
death, with 32.9 percent on detained status; the vast majority (79.3 percent) of victims held in
detention centers were on detained status.
A substantial majority (78.5 percent) of victims had a history of prior offenses; most of these (72.7
percent) were of a nonviolent nature.
With the exception of detention centers, deaths were evenly distributed during a more than 12-month
period, with the same number of suicides occurring within the first 3 days of confinement as
occurring after more than 10 months of confinement; only 3.8 percent of all suicides occurred within
the first 24 hours of confinement.
All detention center suicides occurred within the first 4 months of confinement, with more than 40
percent occurring within the first 72 hours.
vii
Nearly three-quarters (73.4 percent) of victims had a history of substance abuse, 19.0 percent had a
history of medical problems, 44.3 percent had a history of emotional abuse, 34.2 percent had a
history of physical abuse, and 27.8 percent had a history of sexual abuse.
A majority (65.8 percent) of victims had a history of mental illness (with 65.3 percent of these
victims suffering from depression at the time of death); 53.5 percent of victims were taking
psychotropic medications.
More than two-thirds (69.6 percent) of victims had a history of suicidal behavior, with suicide
attempt(s) the most frequent type of suicidal behavior (45.5 percent), followed by suicidal
ideation/threat (30.9 percent) and suicidal gesture/self-mutilation (23.6 percent).
Approximately half (50.6 percent) of suicides occurred during a 6-hour period between 6 p.m. and
midnight, and almost a third (29.1 percent) occurred between 6 p.m. and 9 p.m.; 70.9 percent of
suicides occurred during traditional waking hours (6 a.m. to 9 p.m.), and 29.1 percent occurred
during nonwaking hours (9 p.m. to 6 a.m.).
Almost all (98.7 percent) the suicides were by hanging; 71.8 percent of these victims used their
bedding (e.g., sheet, blanket) as the instrument. A variety of anchoring devices were used in the
hangings, including door hinge/knob (20.5 percent), air vent (19.2 percent), bedframe (19.2 percent),
and window frame (14.1 percent).
None of the victims was under the influence of alcohol or drugs at the time of the suicide.
Almost three-quarters (74.7 percent) of victims were assigned to single-occupancy rooms.
Approximately 41 percent of victims were found in less than 15 minutes after the last observation of
the youth: however, slightly more than 15 percent of victims were found more than 1 hour after last
being seen alive.
About half (50.6 percent) the victims were on room confinement status at the time of death (and 62.0
percent of victims had a history of room confinement). The circumstances that led to room
confinement at the time of death included failure to follow program rules/inappropriate behavior
(47.3 percent), threat/actual physical abuse of staff or peers (42.1 percent), and other (10.6 percent).
Only 16.7 percent of residential treatment center victims were on room confinement status at time of
death.
A large majority (85.0 percent) of victims who died by suicide while on room confinement status
died during waking hours (6 a.m. to 9 p.m.), a higher percentage than those victims who died by
suicide during waking hours but were not on room confinement status (70.9 percent).
A small percentage (16.5 percent) of victims were on suicide precaution status at time of death, most
of whom were required to be observed at 15-minute intervals. Despite their identified risk, almost
half of these victims were found to be last observed in excess of the required 15-minute interval.
More than two-thirds (69.6 percent) of victims were assessed by a qualified mental health
professional before their death (although only 34.5 percent of detention center victims received such
viii
assessments); slightly less than half (44.3 percent) of all victims either had never been assessed by a
qualified mental health professional or had not been assessed within 30 days of their death.
Only 37.9 percent of the suicides took place in facilities that provided annual suicide prevention
training to its direct care staff.
Although a large majority (78.5 percent) of victims died in facilities that maintained a written suicide
prevention policy at time of suicide, only 20.3 percent of victims were in facilities that had all seven
suicide prevention components (written policy, intake screening, training, CPR certification,
observation, safe housing, and mortality review) at time of suicide. The degree to which suicides
took place in facilities that had all seven suicide prevention components varied considerably by
facility type: detention centers (10.3 percent), training schools/secure facilities (24.2 percent),
reception/diagnostic centers (40.0 percent), and residential treatment centers (25.0 percent).
The study offers several recommendations, including the following:
Consistent with national corrections standards and practices, juvenile facilities, regardless of size and
type, should have a detailed written suicide prevention policy that addresses each of the following
critical components: training, identification/screening, communication, housing, levels of
supervision, intervention, reporting, and followup/mortality review.
Juvenile facility administrators should create and maintain effective training programs and ensure
that direct care, medical, and mental health personnel receive both pre-service and annual instruction
in suicide prevention. Young lives will continue to be lost and jurisdictions will incur liability from
these tragic deaths unless facility personnel receive adequate training.
Suicide prevention training curriculums used in juvenile facilities have historically relied on
information gathered about adult inmate suicide and youth suicide in the community. Given the
findings from this study, which demonstrate differences between adult inmate suicide and juvenile
suicide, development of separate training curriculums targeted to suicide prevention within juvenile
facilities appears warranted.
Significant deficiencies in intake screening and a lack of suicide prevention programs in detention
centers experiencing suicides warrant immediate attention. Resources need to be channeled to
facilities housing juveniles, particularly detention centers, to ensure basic, yet comprehensive,
suicide prevention programming, including intake screening for suicide risk.
The fact that more than one-third of the suicides identified in this study were unknown to
government agencies responsible for the care and advocacy of confined youth is a cause for concern.
Each death within a juvenile facility should be accounted for, comprehensively reviewed, and
provisions made for corrective action as warranted.
Research efforts should be directed at determining additional precipitating factors to juvenile
suicide, the perceived relationship between suicide and room confinement, and the effect, if any, of
prolonged confinement on suicidal behavior.
ix
Findings from this study pose formidable challenges for juvenile correctional and healthcare officials
and their staffs. For example, although room confinement remains a standard procedure in most
juvenile facilities, its potential consequences need to be weighed carefully. Moreover, because data
show that suicides can occur at any time during a youths confinement, a continuum of comprehensive
suicide prevention services aimed at the collaborative identification, continued assessment, and safe
management of youth at risk for self-harm is required.
Introduction
This introduction provides a review of the literature on juvenile suicide in confinement. It examines the
prevalence of juvenile suicide in the general population, highlights risk factors for juvenile suicide,
assesses the provision of mental health services in juvenile facilities, and presents data on adult and
juvenile suicide in confinement.
Prevalence
According to the Surgeon General of the United States, youth suicide in the general population is a
national tragedy and a major public health problem (Carmona, 2005; U.S. Department of Health and
Human Services, 1999). The suicide rate of young people (ages 15 to 24) has tripled from 2.7 per
100,000 in 1950 to 9.9 per 100,000 in 2001 (Arias et al., 2003). More teenagers die from suicide than
from cancer, heart disease, AIDS, birth defects, stroke, pneumonia and influenza, and chronic lung
disease combined (U.S. Department of Health and Human Services, 1999). In addition, a recent national
survey found that more than 3 million youth are at risk for suicide each year in the community, with 37
percent of surveyed youth reporting that they attempted suicide during the previous 12 months
(Substance Abuse and Mental Health Services Administration, 2001).
Despite the fact that youth suicide in the general population is considered a major public health problem,
as well as the fact that several national studies have been conducted regarding the extent and nature of
suicide in jail and prison facilities (Hayes, 1989, 1995), comparable national research has not been
conducted regarding juvenile suicide in confinement.1
Risk Factors
Brent (1995) has identified mental disorder and substance abuse as the most important set of risk factors
for adolescent suicide in the general population. Other risk factors include impulsive aggression,
parental depression and substance abuse, family discord and abuse, and poor family support. Life
stressorsspecifically interpersonal conflict and loss, as well as legal and disciplinary problemswere
also associated with suicidal behavior in adolescents, particularly those who were substance abusers. It
has been argued that many of these risk factors are prevalent in youth confined in juvenile facilities
(Alessi et al., 1984; Rohde, Seeley, and Mace, 1997). Recently, Sanislow et al. (2003) found that high
levels of depression and hopelessness and the acute situational stress of incarceration might explain why
confined youth had levels of psychological distress similar to those of severely disturbed adolescents
hospitalized on an acute psychiatric inpatient unit. Therefore, if all youth are to some degree at risk for
suicide, juveniles in confinement may be at greater risk because they have life histories that predispose
them to suicide (e.g., mental disorders and substance abuse; physical, sexual, and emotional abuse; and
current and prior self-injurious behavior).
Mental Disorders and Substance Abuse

The prevalence of mental disorders among confined youth has been studied in several states. A
California study found that 32 percent of confined male juveniles met the criteria for post-traumatic
stress disorder and that these youth experienced increased levels of distress, anxiety, and depression
while exhibiting lower levels of restraint, impulse control, and suppression of aggression (Steiner,
Garcia, and Matthews, 1997). In Mississippi, a study found that at least 66 percent of confined youth
met the Diagnostic and Statistical Manual (DSM-IV) criteria for a mental disorder, with more than half
the youth suffering from multiple disorders including conduct disorder and substance abuse (Robertson
and Husain, 2001). In Maryland, some 57 percent of confined youth self-reported a prior mental health
history (Shelton, 2000). In Virginia, more than 60 percent of youth admitted to the states juvenile
reception and diagnostic center were identified with a mental health treatment need (McGarvey and
Waite, 2000). In Georgia, 61 percent of confined youth were found to have mental health disorders
(Marsteller et al., 1997). In comparing rates of mental disorder for juveniles in confinement with rates
for youth in the general population, the Georgia researchers found substantially higher rates for juveniles
in confinement (61 percent versus 22 percent for any disorder, 30 percent versus 11 percent for anxiety
disorders, and 13 percent versus 4 percent for depression). In Texas, researchers found that detention
center youth had a high prevalence of psychiatric disorders, usually undiagnosed, and that comorbidity
was common (Domalanta et al., 2003). Preliminary data from an ongoing longitudinal analysis of mental
disorders among 1,830 youth confined in a county juvenile detention center in Illinois suggest that two-
thirds of the youth have one or more alcohol, drug, or mental disorders, thus projecting that more than
670,000 youth processed into the juvenile justice system throughout the country each year would meet
the diagnostic criteria for one or more alcohol, drug, or mental disorders (Teplin et al., 2002).
In sum, following two comprehensive reviews of the literature (Otto et al., 1992; Edens and Otto, 1997),
youth in confinement have been estimated to experience the following rates of mental disorders:
Conduct disorders (5090 percent).
Attention deficit disorders (up to 46 percent).
Anxiety disorders (641 percent).
Substance abuse or dependence (2550 percent).
Affective disorders (3278 percent).
Psychotic disorder (16 percent).
Co-occurring mental health and substance abuse disorders (more than 50 percent).
Thus, significant rates of mental disorders, particularly conduct disorder, have been consistently
reported for youth in confinement. Because DSM-IV criteria for conduct disorder include aggressive
conduct that causes or threatens physical harm to other people or animals, non-aggressive conduct that
causes property loss or damage, deceitfulness or theft, and serious violations of rule (American
Psychiatric Association, 2000:94), the high rates of this disorder among incarcerated youth are not
surprising. In conclusion, two facts appear undisputeda high percentage of youth in the juvenile
justice system have a diagnosable mental disorder, and these juveniles have higher rates of mental
disorders than youth in the general population (Cocozza and Skowyra, 2000).
Physical, Sexual, and Emotional Abuse

Juveniles in confinement also have higher rates of physical, sexual, and emotional abuse than
adolescents in the community. Shelton (2000) found that confined youth in Maryland had high rates of
self-reported physical (35 percent) and sexual (18 percent) abuse; however, Chapman and colleagues
(2000) found that detained juveniles in Connecticut had lower rates of physical abuse (11 percent) and
sexual abuse (10 percent). Esposito and Clum (2002) found higher rates of self-reported physical (58
percent) and sexual (24 percent) abuse for confined youth. With regard to suicide, confined youth who
reported a history of sexual abuse had a 43-percent incidence of suicidal ideation and a 35-percent
incidence of one or more suicide attempts, whereas youth who reported no history of sexual abuse had
an 18-percent suicidal ideation rate and a 12-percent rate of suicide attempts (Morris et al., 1995).
Self-Injurious Behavior
Although little research has been conducted regarding youth suicide in custody, the information that is
available suggests a high prevalence of self-injurious behavior in juvenile correctional facilities. For
example, according to one national study, more than 11,000 juveniles are estimated to engage in more
than 17,000 incidents of suicidal behavior in juvenile facilities each year (Parent et al., 1994). In 1991, a
modified version of the Centers for Disease Controls Youth Risk Behavior Surveillance System survey
was administered to more than 1,800 confined youth in 39 juvenile institutions across the United States
(Morris et al., 1995). The study found that almost 22 percent of confined youth seriously considered
suicide, 20 percent made a plan, 16 percent made at least one attempt, and 8 percent were injured in a
suicide attempt during the previous 12 months.
Other studies found that significant percentages of detained youth had histories of suicide attempts
(Dembo et al., 1990) and current suicidal behavior (Robertson and Husain, 2001, Shelton, 2000; Davis
et al., 1991; Woolf and Funk, 1985). In fact, Robertson and Husain (2001) found that 31 percent of
confined youth self-reported a suicide attempt, and 9 percent were currently suicidal with either ideation
and/or a plan to act on suicidal thoughts. Finally, Chowanec et al. (1991) found higher rates of self-harm
behavior among incarcerated male youth than in the general adolescent community population.
Caucasian youth appear to attempt suicide in confinement at a higher rate than African American youth
(Kempton and Forehand, 1992; Alessi et al., 1984). Morris and colleagues (1995) found that Native
American and Caucasian youth reported higher rates of suicidal ideation (29 percent and 25 percent,
respectively) than Hispanic, Asian, and African American youth (15 percent, 12 percent, and 8 percent,
respectively). Other researchers have reported similar findings of high rates of suicidal behavior among
Native American youth confined in juvenile facilities (Duclos, LeBeau, and Elias, 1994).2
Several studies consistently found that certain risk factors point to increased rates of suicidal behavior
for incarcerated youth. For example, researchers have reported that confined youth with either major
affective disorder or borderline personality disorder have a higher degree of suicidal ideation and more
suicide attempts than adolescents in the general population (Alessi et al., 1984); incarcerated male youth
whose parents had affectionless bonding styles also reported more suicidal ideation and/or attempts
(McGarvey et al., 1999). Findings from another study indicate that more than half (52 percent) of all
detained youth self-reported current suicidal ideation, with 33 percent having a history of suicidal
behavior (Esposito and Clum, 2002). The researchers concluded that a history of sexual abuse directly
affects the development of suicidal ideation and behavior in incarcerated adolescents (Esposito and
Clum, 2002:145).
In addition, a study of youth confined in a juvenile detention facility found that suicidal behavior in
males was most significantly associated with depression, major life events (such as court involvement,
death of a family member, etc.), poor social connections, and past suicide attempts, whereas suicidal
behavior in females was associated with impulsivity, current depression, instability, and younger age
(Mace, Rohde, and Gnau, 1997; Rohde, Seeley, and Mace, 1997). The most common correlate between
males and females was not living with a biological parent before detention. Suicidal behavior of a friend
was significantly associated with past and current suicidal ideation among boys, but not girls (Rohde,
Seeley, and Mace, 1997).
Finally, a study of confined youth referred for psychiatric assessment found that 30 percent reported
suicidal ideation/behavior and 30 percent reported self-mutilative behavior while incarcerated (Penn et
al., 2003). These youth reported more depression, anxiety, and anger than nonsuicidal confined youth.
Provision of Mental Health Services in Juvenile Facilities

The mental health status of confined youth and the general conditions of confinement within juvenile
correctional systems have increasingly come under scrutiny. Attention has been limited generally to
investigations of specific jurisdictions or anecdotal information on tragic outcomes (Amnesty
International, 1998; Burrell, 1999; Coalition for Juvenile Justice, 1999, 2000; Puritz and Scali, 1998;
Rosenbaum, 1999; Sullivan, 1995; Trupin and Patterson, 2003; Twedt, 2001a, 2001b; U.S. House of
Representatives, 2004).
In 1994, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) released a landmark study,
Conditions of Confinement: Juvenile Detention and Corrections Facilities, about the conditions of
confinement in juvenile facilities (Parent et al., 1994). It included a survey of 984 public and private
detention centers, reception and diagnostic centers, training schools, and ranches throughout the country.
On a daily basis, these facilities held almost 65,000 juveniles or 69 percent of youth confined in the
United States. Substantial and widespread problems in living space, health care, security, and the control
of suicidal behavior were found in the surveyed facilities.
With regard to the state of mental health services for confined youth throughout the country, a 1983
national survey of healthcare delivery in juvenile correctional facilities found deficiencies in certain key
areas: only 60 percent of facilities were conducting initial health screening and less than 50 percent were
providing ongoing mental health services (Anno, 1984). Fifteen years later, in 1998, a national survey
found increased availability of mental health services in juvenile facilities, but that gaps still remained:
64 percent of facilities provided initial mental health screening, 74 percent provided a clinical evaluation
by mental health staff, 82 percent had provisions for psychotropic medication, and 69 percent provided
onsite access to psychiatrists, psychologists, and/or masters degree level social workers (Goldstrom et
al., 2001).
Surveillance Data on Adult and Juvenile Suicide

Suicide is a leading cause of death within jails throughout the country. Suicide ranks third (behind
natural causes and AIDS) as the leading cause of death in prisons (Bureau of Justice Statistics, 2005).
Close to 200 inmates commit suicide in state and federal prisons each year, and the rate of suicide in
prisons, though far below that for jail suicides, is greater than that for the general population (Hayes,
1995). Most research on prison suicide has found that the vast majority of victims are convicted of
personal crimes, housed in single cells, and have a history of suicide attempts and/or mental illness
(Bonner, 1992; He et al., 2001; White and Schimmel, 1995).
Although several national studies have been conducted about the extent and nature of suicide in jail and
prison facilities, comparable national research has not been conducted about juvenile suicide in
confinement. The 1988 Amendments to the Juvenile Justice and Delinquency Prevention Act of 1974
established an annual requirement for OJJDP to provide a detailed summary and analysis of the most
recent juvenile custody data on the number and individual characteristics of juveniles taken into custody,
rates at which they are taken into custody, number of juveniles who died in custody, and circumstances
of their deaths. In response to this mandate, OJJDP established the Research Program on Juveniles
Taken into Custody in 1989. The survey program included data collected from the State Juvenile
Corrections System Reporting Program and the Children in Custody (CIC) Census. In 1988, the first
year of the CIC survey, state officials reported 17 suicides occurring in public detention centers,
reception/diagnostic centers, and training schools throughout the country (Krisberg et al., 1991). In
1993, 14 such suicides were reported (Austin et al., 1995). Other than listing the gender of the victim,
facility type, and region of the country, the OJJDP census was unable to collect data on the
circumstances surrounding these suicides. As stated by the authors as a preface to one of the survey
reports:
...information available on characteristics of juveniles admitted is inadequate. While most
facilities record specific demographic, legal, and other information for administrative or
operational purposes, no mechanism exists to collect and synthesize these data on a national
level for research, policy, or program development purposes. (DeComo et al., 1995:1)
In 1997, OJJDP inaugurated a successor to the CIC Census series that included both a Census of
Juveniles in Residential Placement (CJRP) and a Juvenile Residential Facility Census (JRFC). The goal
of JRFC is to collect information on facility environments and services, including facility ownership,
security features, bed space and crowding, staffing, physical and mental health care, education and
substance abuse programming, and deaths in custody. According to the 2000 JRFC, 10 juvenile suicides
were reported during the most recent 12-month reporting period (OJJDP, 2002).3 Similar to the CIC
series, the JRFC is unable to collect data on the circumstances surrounding these suicides.
The current CJRP and JRFC research programs remain the only source of nationwide data regarding
juveniles in custody. Given the limitations described above, no data source is currently available to
adequately document the extent and nature of juvenile suicide in confinement.4
Data Collection
In August 1999, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) awarded a contract
to the National Center on Institutions and Alternatives to conduct the first national survey on juvenile
suicide in confinement.5 The primary goal was to determine the extent and distribution of juvenile
suicides in confinement and to gather descriptive data on the characteristics of each victim, incident, and
juvenile facility in which the suicide occurred. A report of the surveys findings would serve as a
resource for juvenile justice practitioners to expand their knowledge and for juvenile correctional
administrators to create and/or revise policies and training curriculums on suicide prevention. Data
collection occurred in two phases.
Phase 1
During the initial phase, a 1-page survey instrument and cover letter was sent to directors of 1,178
public and 2,634 private juvenile facilities in the United States.6 Each of the 3,812 facility directors was
asked to complete the survey if the facility experienced a juvenile suicide between 1995 and 1999 (see
appendix A).7 Similar to OJJDPs Conditions of Confinement study (Parent et al., 1994), the project
surveyed facilities that housed juveniles in more traditional types of confinementjuvenile detention
centers, reception centers, training schools, ranches, camps, and farmsoperated by state and local
governments and private organizations.8 Excluded from the project were open, physically unrestricted
residential programs for juveniles such as shelters, halfway houses, and group homes.
To more accurately count the number of juvenile suicides in confinement between 1995 and 1999,
survey forms and cover letters were also sent to the department of juvenile corrections, attorney
generals office, and state medical examiner in each state; members of the National Association of Child
Advocates in 47 states; child fatality review programs in 12 states; and various other state agencies (e.g.,
child ombudsman, licensing and regulatory services). Further, survey forms and cover letters were sent
to each of OJJDPs state advisory groups, state criminal justice councils, and state juvenile justice
specialists. Finally, a newspaper clipping service was used to verify juvenile suicides not identified
through these more traditional sources.
The initial phase identified 110 juvenile suicides occurring between 1995 and 1999. The suicides were
distributed among 38 states. Table 1 provides a breakdown of data collection sources for the suicides.
Nearly half (54) of the deaths were identified from self-reporting of the juvenile facilities. Data obtained
from state departments of juvenile corrections yielded an additional 27 suicides not identified through
self-reporting. Of the remaining deaths, 14 were identified through other state agencies (i.e., those
responsible for licensing and regulatory services), 10 through newspaper articles, and 5 through other
sources (i.e., the project directors expert witness consultation and/or technical assistance to facilities
that sustained these deaths). It should be noted that self-reporting was given the primary recognition for
the identification of juvenile suicides. For example, if a juvenile suicide was identified by more than one
source, including a self-report from the facility where the death occurred, the source would be attributed
to a self-report (table 1).
Table 1: Sources Used To Identify the Number of Juvenile Suicides in Confinement, 19951999
Source*
Facility self-report
State departments of juvenile corrections
Other state agencies
Newspaper articles
Other sources
Total
* Each suicide is only listed once (under the highest ranking source).
N
54
27
14
10
5
110
%
49.1
24.6
12.7
9.1
4.5
100.0
Of the 54 suicides self-reported from facility directors, 26 (48.2 percent) of these deaths were unknown
to any state agency (i.e., state departments of juvenile corrections or other state agencies responsible for
licensing and regulatory services). Further, the 15 suicides that were identified through newspaper
articles or other sources were also unknown to any state agency. Therefore, 41 (37.3 percent) of the 110
juvenile suicides identified in this study were unknown to any state agency. Most of these suicides
occurred in either county detention centers or private residential treatment centers.
Phase 2
Once facilities that had experienced a suicide during the 5-year study period were identified, the second
phase of the survey process was initiated. It included dissemination of a 7-page survey instrument to the
directors of the facilities that sustained suicides (see appendix B). The survey instrument was designed
to collect data on the following three types of characteristics:
Demographic characteristics included age, sex, race, living arrangement, current offense(s), prior
offense(s), legal status (detained, committed, other), length of confinement, drug/alcohol
intoxication at confinement, history of room confinement, substance abuse history, medical/mental
health history, physical/sexual abuse history, and history of suicidal behavior.
Incident characteristics included date, time, and location of suicide; housing assignment (e.g.,
single or multiple occupancy); room confinement status; method and instrument used; time span
between incident and finding victim; and possible precipitating factors to the suicide.
Facility characteristics included facility type, facility ownership (e.g., state, county, private),
capacity/population at time of suicide, and suicide prevention components in use (written policy,
intake screening, staff training in suicide prevention and cardiopulmonary resuscitation, observation
levels, safe housing, and mortality review).
The phase 2 survey instruments and cover letters were mailed to directors of the 83 facilities that
sustained the 110 suicides. The process was implemented in August 2000 and initially resulted in the
completion and return of 23 surveys (20.9 percent). Subsequent followup letters and telephone contact
with facility directors not responding to initial survey requests occurred in October 2000, December
2000, and February 2001.9 These efforts resulted in the completion and return of an additional 52
surveys (47.2 percent). A final request letter by OJJDP and the National Juvenile Detention Association
in June 2001 resulted in an additional 4 completed surveys (3.6 percent). Respondents provided
completed surveys on 79 suicides. The response rate (71.8 percent) was lower than that found in the
project directors two previous national studies of jail suicide (82 percent for a 1981 study, 85 percent
for a 1988 study). Several reasons were cited by juvenile facility directors for not fully participating in
the study, including litigation and advice from legal counsel, sensitivity of the subject matter, issues of
confidentiality, lack of time, and manpower constraints. Although 30 (27 percent) of the 110 suicides
occurred in private facilities, many of which were residential treatment centers, approximately twothirds (67 percent) of nonresponses to survey requests came from private facilities.
Findings
Project staff analyzed data on 79 suicides that occurred in public and private juvenile facilities between
1995 and 1999. The findings are presented in relationship to facility type, with 33 (41.8 percent) of the
suicides having occurred in training school/secure facilities, 29 (36.7 percent) in detention centers, 12
(15.2 percent) in residential treatment centers, and 5 (6.3 percent) in reception/diagnostic centers.
Almost half (48.1 percent) the suicides occurred in facilities administered by state agencies, 39.2 percent
took place in county facilities, and 12.7 percent in private programs. The 79 suicides were distributed
among 70 juvenile facilities: 65 facilities sustained a single suicide, 3 facilities had 2 suicides each, 1
facility had 3 suicides, and 1 facility had 5 suicides during the survey period.
Personal Characteristics of the Victims

Race
More than two-thirds (68.4 percent) of victims were Caucasian (table 2). This is not surprising given that
this racial group represents more than 90 percent of suicides that occur each year in the community
(Arias et al., 2003). A previous study found that Caucasian youth held in detention attempted suicide at a
rate approximately 3.5 times that of African American youth (Kempton and Forehand, 1992). Although
African American and Hispanic youth comprised approximately 39 percent and 18 percent, respectively,
of the confined juvenile population throughout the country (Sickmund and Wan, 2001),10 they
represented only 11.4 percent and 6.3 percent of victims in this study. Caucasian and American Indian
youth, on the other hand, comprised approximately 38 percent and 2 percent, respectively, of the
confined juvenile population throughout the country, but 68.4 percent and 11.4 percent of victims in this
study. The causes of these disproportionate relationships were outside the purview of this analysis.
Table 2: Suicides in Juvenile Facilities, 19951999, by Victims Race and Facility Type
Race
Caucasian
African American
American Indian
Hispanic
Other
Total
Detention Center
17
6
3
2
1
29
Training School /
Reception /
Residential
Secure Facility Diagnostic Center Treatment Center
25
3
9
1
1
1
5
0
1
1
1
1
1
0
0
33
5
12
_____Combined_____
N
%
54
68.4
9
11.4
9
11.4
5
6.3
2
2.5
79
100.0
Sex
The vast majority (79.7 percent) of victims were male (table 3). Given that more than 80 percent of all
confined juveniles throughout the country are male (Sickmund and Wan, 2001), these findings were not
surprising.
Table 3: Suicides in Juvenile Facilities, 19951999, by Victims Sex and Facility Type
Sex
Male
Female
Total
Detention Center
23
6
29
Training School /
Reception /
Residential
27
5
8
6
0
4
33
5
12
_____Combined_____
N
%
63
79.7
16
20.3
79
100.0
Age
More than 70 percent of victims were between the ages of 15 and 17 (table 4). The average (mean) age
was 15.7. The youngest victim was 12 and the oldest 20. These findings were also consistent with CJRP
data (Sickmund and Wan, 2001).
Table 4: Suicides in Juvenile Facilities, 19951999, by Victims Age and Facility Type
Training School /
Reception /
Residential
Age
Detention Center Secure Facility Diagnostic Center Treatment Center
12
1
0
0
0
13
0
1
0
2
14
5
6
0
1
15
10
6
2
5
16
3
8
3
1
17
9
6
0
3
18
1
4
0
0
19
0
1
0
0
20
0
1
0
0
Total
29
33
5
12
Note: Percents for details do not total 100.0 because of rounding.
_____Combined_____
N
%
1
1.3
3
3.8
12
15.2
23
29.1
15
19.0
18
22.8
5
6.3
1
1.3
1
1.3
79
100.0
Living Arrangement Before Confinement

More than a third (38.0 percent) of suicide victims were living with one parent at the time of their
confinement (table 5). Slightly less than one quarter (22.8 percent) of victims were living with both
parents.
Table 5: Suicides in Juvenile Facilities, 19951999, by Victims Living Arrangement (Before Confinement) and Facility
Type
Training School /
Reception /
Residential
Living Arrangement
One parent
13
10
3
4
Both parents
7
8
1
2
Community placement
3
4
0
2
Other relatives
3
3
0
1
Foster parent/guardian
2
3
0
1
Adoptive parents
0
3
0
1
Self only
0
1
0
1
Unknown
1
1
1
0
Total
29
33
5
12
_____Combined_____
N
%
30
38.0
18
22.8
9
11.4
7
8.9
6
7.6
4
5.1
2
2.5
3
3.8
79
100.0
10
Most Serious Offense11

Most (69.6 percent) victims were confined on nonviolent (i.e., nonperson) offenses, with property
offenses accounting for the highest percentage (32.9 percent) of victims (table 6). In addition, the public
order, status, and probation violation categories combined represented more than a third (34.2 percent)
of the offenses. Person offenses accounted for 30.4 percent of victims, and only 2.5 percent of victims
were confined on drug offenses. Approximately 40 percent (13 of 33) of victims housed in a training
school/secure facility were confined for a person offense.
With only a slight variance, these findings were consistent with data on the confined juvenile
population. For example, person offenses accounted for 35 percent and property offenses accounted for
29 percent of confined juveniles (Sickmund and Wan, 2001). However, whereas the public order, status,
and probation violation categories combined represented 27 percent of confined juveniles, these
categories represented 34.2 percent of victims in this study.
Table 6: Suicides in Juvenile Facilities, 19951999, by Victims Most Serious Offense and Facility Type
Most Serious Offense
Property
Person
Status
Probation violation
Public order
Drug
Total
Detention Center
11
8
2
6
2
0
29
Training School /
Reception /
Residential
10
2
3
13
2
1
4
0
4
2
0
1
3
1
2
1
0
1
33
5
12
_____Combined_____
N
%
26
32.9
24
30.4
10
12.7
9
11.4
8
10.1
2
2.5
79
100.0
Additional Charges
At confinement, 39.2 percent of victims had a second charge. Property offenses accounted for the
majority (51.7 percent) of additional charges, followed by person offenses (19.4 percent). The public
order, status, and probation violation categories combined represented 28.9 percent of the second
charges at confinement.
Confinement Status
Approximately two-thirds (67.1 percent) of victims were being held on commitment status at time of
death (table 7). This finding was significantly different from a national study on jail suicides that found
the overwhelming majority of victims were on detention status at time of death (Hayes, 1989). The
finding was, however, somewhat consistent with national data on confined juveniles throughout the
country that found 74 percent of youth were on commitment status (Sickmund and Wan, 2001). Not
surprisingly, the vast majority (79.3 percent) of victims held in detention centers were on detention
status and all training school/secure facility victims were on commitment status at time of death.
11
Table 7: Suicides in Juvenile Facilities, 19951999, by Victims Confinement Status and Facility Type
Training School /
Reception /
Residential
_____Combined_____
Confinement Status*
N
%
Committed
6
33
5
9
53
67.1
Detained
23
0
0
3
26
32.9
Total
29
33
5
12
79
100.0
* Committed juveniles included those placed in a facility as part of a court-ordered disposition. Detained juveniles included those held awaiting
a court hearing, adjudication, disposition, and/or placement.
Most Serious Prior Offenses

A significant majority (62 of 79, or 78.5 percent) of suicide victims had a history of prior offenses
within the juvenile justice system (table 8). Of victims who had a history of prior offenses, most
committed crimes of a nonviolent nature, with property offenses the most common (50.0 percent).
Public order, status, and probation violation categories combined represented 22.5 percent of the most
serious prior offenses; person offenses accounted for 22.6 percent of victims prior offenses.
Table 8: Suicides in Juvenile Facilities by Victims With Prior Offenses, 19951999, by Victims Most Serious Prior
Offense and Facility Type
Training School /
Reception /
Residential
Most Serious Prior Offense Detention Center Secure Facility Diagnostic Center Treatment Center
Property
12
13
1
5
Person
5
9
0
0
Status
5
4
0
2
Public order
1
1
0
0
Probation violation
0
1
0
0
Drug
0
0
0
0
Unknown
1
0
1
1
Total
24
28
2
8
_____Combined_____
N
%
31
50.0
14
22.6
11
17.7
2
3.2
1
1.6
0
0.0
3
4.8
62
100.0
Length of Confinement (Before Suicide)

Relatively few (3.8 percent) juvenile suicides occurred within the first 24 hours of confinement, and all
these deaths occurred in detention centers (table 9). This finding significantly differed from a national
study on jail suicides that found more than half took place within the first 24 hours, with almost a third
occurring within the first 3 hours (Hayes, 1989). Instead, the deaths in this national survey of juvenile
suicide in confinement were distributed fairly evenly during a more than 12-month period. For example,
the same number of suicides (13) occurred within the first 3 days of confinement as occurred in more
than 10 months of confinement.12 The majority of suicides (31.7 percent) occurred within 1 to 4 months
of confinement. However, all the detention center suicides occurred within the first 4 months of
confinement, with more than 40 percent occurring within the first 72 hours, while most (72.7 percent)
training school/secure facility suicides occurred 3 months or more following confinement.13
12
Table 9: Suicides in Juvenile Facilities, 19951999, by Victims Length of Confinement (Before Suicide) and Facility
Type
Training School /
Reception /
Residential
Length of Confinement
Less than 24 hours
3
0
0
0
13 days
9
0
0
1
46 days
3
0
0
0
3
713 days
3
0
0
1430 days
4
2
1
1
12 months
4
4
3
2
34 months
3
7
0
2
56 months
0
4
0
3
79 months
0
2
1
1
1012 months
0
1
0
2
More than 12 months
0
10
0
0
Total
29
33
5
12
_____Combined_____
N
%
3
3.8
10
12.7
3
3.8
6
7.6
8
10.1
13
16.5
12
15.2
7
8.9
4
5.1
3
3.8
10
12.7
79
100.0
Substance Abuse
Nearly three-quarters (73.4 percent) of victims had a history of substance abuse (table 10).
Approximately one-third (32.8 percent) of these victims used alcohol, marijuana, or cocaine before
confinement. This finding is consistent with data suggesting that two-thirds of confined youth have one
or more alcohol, drug, or mental disorders (Teplin et al., 2002). The victims history of substance abuse
was unknown in a number of cases, with detention centers accounting for most (11 of 13) nonresponses.
Table 10: Suicides in Juvenile Facilities, 19951999, by Victims History of Substance Abuse and
Facility Type
History of
Substance Abuse
Yes
No
Unknown
Total
Detention Center
15
3
11
29
Training School /
Reception /
Residential
29
5
9
2
0
3
2
0
0
33
5
12
_____Combined_____
N
%
58
73.4
8
10.1
13
16.5
79
100.0
Medical Problems
Most (64.5 percent) victims did not have a history of medical problems (table 11). Allergies and asthma
were common types of medical problems found in the few victims who had problems. Detention centers
accounted for most (10 of 13) nonresponses.
Table 11: Suicides in Juvenile Facilities, 19951999, by Victims History of Medical Problems and
Facility Type
History of
Medical Problems
Yes
No
Unknown
Total
Detention Center
5
14
10
29
Training School /
Reception /
Residential
9
1
0
23
4
10
1
0
2
33
5
12
_____Combined_____
N
%
15
19.0
51
64.5
13
16.5
79
100.0
13
Emotional Abuse
Somewhat less than half the victims had a history of emotional abuse (table 12). The most frequent
examples were excessive punishment, neglect and/or abandonment, verbal abuse, and other types of
family dysfunction. The victims history of emotional abuse was unknown in almost one-quarter of the
cases, with detention centers accounting for more than half the nonresponses (10 of 19).
Table 12: Suicides in Juvenile Facilities, 19951999, by Victims History of Emotional Abuse and
Facility Type
History of
Emotional Abuse
Yes
No
Unknown
Total
Detention Center
11
8
10
29
Training School /
Reception /
Residential
15
2
7
12
2
3
6
1
2
33
5
12
_____Combined_____
N
%
35
44.3
25
31.6
19
24.1
79
100.0
Physical Abuse
Slightly more than a third of victims had a history of physical abuse (table 13), with an immediate
family member (e.g., father or stepfather) being the perpetrator of the abuse in the majority of cases (20
of 27). Again, the survey revealed a considerable percentage of unknown responses to this variable, with
detention centers providing almost half (8 of 17) the nonresponses.
Table 13: Suicides in Juvenile Facilities, 19951999, by Victims History of Physical Abuse and Facility Type
History of
Physical Abuse
Yes
No
Unknown
Total
Detention Center
7
14
8
29
Training School /
Reception /
Residential
15
1
4
13
2
6
5
2
2
33
5
12
_____Combined_____
N
%
27
34.2
35
44.3
17
21.5
79
100.0
Sexual Abuse
More than a quarter of victims had a history of sexual abuse, with an equal number of victims whose
history of sexual abuse was unknown (table 14). For those who were abused, an immediate family
member (e.g., father or stepfather) was the perpetrator in many cases. Detention centers accounted for
half the nonresponses.
Table 14: Suicides in Juvenile Facilities, 19951999, by Victims History of Sexual Abuse and Facility Type
History of
Training School /
Reception /
Residential
Sexual Abuse
Yes
3
12
3
4
No
15
14
1
5
Unknown
11
7
1
3
Total
29
33
5
12
_____Combined_____
N
%
22
27.8
35
44.3
22
27.8
79
100.0
14
Mental Illness
Nearly two-thirds (65.8 percent) of victims had a history of mental illness, with many (65.3 percent) of
these victims suffering from depression at time of death. Other mental illnesses reported included
attention deficit/hyperactivity disorder, conduct disorder, post-traumatic stress disorder, and psychotic
disorder (53.5 percent of the victims were taking psychotropic medication at the time of their death).14
Although earlier research also indicates that a significant percentage of youth in the juvenile justice
system suffer from at least one mental disorder and have higher rates of mental disorders than youth in
the general population (Cocozza and Skowyra, 2000), it should be noted that substance abuse disorder
(which accounts for a sizable percentage of psychiatric disorders) was not included in this category.
Detention centers accounted for all nonresponses.
Table 15: Suicides in Juvenile Facilities, 19951999, by Victims History of Mental Illness and Facility Type
History of
Mental Illness
Yes
No
Unknown
Total
Detention Center
14
6
9
29
Training School /
Reception /
Residential
23
4
11
10
1
1
0
0
0
33
5
12
_____Combined_____
N
%
52
65.8
18
22.8
9
11.4
79
100.0
Prior Suicidal Behavior

More than two-thirds (69.6 percent) of victims had a history of suicidal behavior (table 16). The most
frequent type of suicidal behavior was suicide attempts (45.5 percent), followed by suicidal
ideation/threat (30.9 percent), and suicidal gesture/self-mutilation (23.6 percent). Although other
research, summarized earlier in this report, shows that a notable percentage (varying between 8 percent
and 52 percent) of confined youth had a history of suicidal behavior, the finding from this national
survey suggests that confined youth who commit suicide have a higher percentage of prior suicidal
behavior than those confined youth who engage in suicidal behavior but do not commit suicide.
Compared with other facility types, suicide victims in detention centers were less likely to have a known
history of suicidal behavior (only 51.7 percent, as compared with 80.0 percent in all other facilities).
Table 16: Suicides in Juvenile Facilities, 19951999, by Victims Prior Suicidal Behavior and Facility Type
Training School /
Reception /
Residential
Prior Suicidal Behavior
Yes
15
26
5
9
No
12
7
0
3
Unknown
2
0
0
0
Total
29
33
5
12
_____Combined_____
N
%
55
69.6
22
27.8
2
2.5
79
100.0
History of Room Confinement

For purposes of this study, room confinement was defined as a behavioral sanction imposed on youth
that restricted movement for varying amounts of time. It included, but was not limited to, isolation,
segregation, time-out, or a quiet room. Room confinement did not include youth assigned to their room
during traditional nonwaking hours.
15
Most (62.0 percent) suicide victims had a history of room confinement (table 17). The circumstances
that led to room confinement included threat or actual physical abuse of staff or peers (40.5 percent),
verbal abuse of staff or peers (26.2 percent), failure to follow program rules or inappropriate behavior
(26.2 percent), and other (7.1 percent), which included two cases of youth involved in gang activity and
one case of a standard protocol for new intake.
Table 17: Suicides in Juvenile Facilities, 19951999, by Victims History of Room Confinement and
Facility Type
History of
Room Confinement
Yes
No
Total
Detention Center
18
11
29
Training School /
Reception /
Residential
20
3
8
13
2
4
33
5
12
_____Combined_____
N
%
49
62.0
30
38.0
79
100.0
Suicide Incident Characteristics

Date
Table 18 shows the distribution of juvenile suicides during the 5-year study period (19951999). The
fact that 1997 accounted for the highest number (and 1995 the lowest number) of suicides was not
statistically significant. For example, the reporting of only 9 suicides during 1995 may have more to do
with the inability of respondents to collect data that was several years old or the possibility that, given
high staff turnover in many facilities, survey respondents were not employed at the facility when the
earlier suicides took place.
Table 18: Suicides in Juvenile Facilities, 19951999, by Year of Suicide and Facility Type
Year
1995
1996
1997
1998
1999
Total
Detention Center
4
3
10
6
6
29
Training School /
Reception /
Residential
3
0
2
11
1
1
6
2
4
8
1
3
5
1
2
33
5
12
_____Combined_____
N
%
9
11.4
16
20.3
22
27.8
18
22.8
14
17.7
79
100.0
Suicides were distributed throughout the year, although more than 30 percent of the reported deaths
occurred in the months of January and May. Contrary to common belief, certain seasons of the year and
holidays did not correlate with a higher number of suicides. Further, no statistically significant
difference existed regarding the day of the week on which the suicides occurred.
Time
Research on adult jail suicide has found that deaths are more prevalent when staff supervision is
reduced. For example, less than 20 percent of deaths in a national study of jail suicides occurred during
the 6-hour period between 9 a.m. and 3 p.m., a major portion of the day shift (Hayes, 1989). Findings
from this study indicate that most (70.9 percent) suicides occurred during traditional waking hours (6
a.m. to 9 p.m.), while 29.1 percent occurred during traditional nonwaking hours (9 p.m. to 6 a.m.) (table
16
19). In addition, approximately half (50.6 percent) the suicides occurred during the 6-hour period
between 6 p.m. and midnight, and almost a third (29.1 percent) occurred between 6 p.m. and 9 p.m.
Table 19: Suicides in Juvenile Facilities, 19951999, by Time of Suicide and Facility Type
Time of Suicide
12 midnight to 3 a.m.
3 a.m. to 6 a.m.
6 a.m. to 9 a.m.
9 a.m. to 12 noon
12 noon to 3 p.m.
3 p.m. to 6 p.m.
6 p.m. to 9 p.m.
9 p.m. to 12 midnight
Total
Detention Center
1
1
1
5
2
5
8
6
29
Training School /
Reception /
Residential
2
0
0
1
0
1
1
1
0
5
0
1
3
1
1
5
0
2
9
2
4
7
1
3
33
5
12
_____Combined_____
N
%
3
3.8
3
3.8
3
3.8
11
13.9
7
8.9
12
15.2
23
29.1
17
21.5
79
100.0
Method, Instrument, and Anchoring Device

The study found that all but one victim (98.7 percent) used hanging as the method of suicide (table 20).
(The sole victim of other means absconded from the facility and ran in front of a passing train.) The vast
majority (71.8 percent) of victims used bedding (e.g., sheet, blanket) as the instrument to hang
themselves. Clothing, excluding belts and shoelaces, was used to a lesser degree. Other instruments
included a towel and a bag.
Table 20: Suicides by Hanging in Juvenile Facilities, 19951999, by Instrument Used and Facility Type
Training School /
Reception /
Residential
Instrument
Bedding
23
22
3
8
Clothing
5
4
0
1
Belt
1
1
0
2
Shoelace
0
3
1
0
Other
0
2
1
1
Total
29
32
5
12
_____Combined_____
N
%
56
71.8
10
12.8
4
5.1
4
5.1
4
5.1
78
100.0
Suicide victims used a variety of anchoring devices, including door hinges/knobs, air vents, bedframes,
and window frames (table 21). Other devices included toilets, sinks, and television stands.
Table 21: Suicides by Hanging in Juvenile Facilities, 19951999, by Anchoring Device Used and Facility Type
Anchoring Device
Door hinge/knob
Air vent
Bedframe
Window frame
Closet rod
Sprinkler head
Other
Unknown
Total
Detention Center
6
7
7
6
0
2
1
0
29
Training School /
Reception /
Residential
6
0
4
6
2
0
5
1
2
5
0
0
2
1
4
3
0
1
3
1
1
2
0
0
32
5
12
_____Combined_____
N
%
16
20.5
15
19.2
15
19.2
11
14.1
7
9.0
6
7.7
6
7.7
2
2.6
78
100.0
17
Intoxication
None of the 79 victims was under the influence of alcohol or drugs at the time of suicide. This finding is
in stark contrast to a national study on jail suicides that found more than 60 percent of adult suicide
victims were intoxicated at the time of their suicide (Hayes, 1989).
Room Assignment
At the time of the suicide, the data indicate that most (74.7 percent) victims were assigned to single
occupancy rooms, while a quarter (25.3 percent) were assigned to multiple occupancy rooms. No
significant differences between room assignments and the types of facilities where the suicides occurred
were noted.
Time Span
Approximately 41 percent of respondents stated that staff found the victim in less than 15 minutes
following the last observation of the youth (table 22). However, slightly more than 15 percent of victims
were reported to be found more than an hour following last observation, including several victims found
after 3 hours. In one case, the time span between the last observation and the suicide was unknown.
Table 22: Suicides in Juvenile Facilities, 19951999, by Time Span Between Last Observation and Finding Victim and
Facility Type
Time Span
Less than 15 minutes
1530 minutes
3160 minutes
13 hours
More than 3 hours
Unknown
Total
Detention Center
14
6
5
2
2
0
29
Training School /
Reception /
Residential
9
1
8
14
2
1
2
2
2
5
0
0
3
0
0
0
0
1
33
5
12
_____Combined_____
N
%
32
40.5
23
29.1
11
13.9
7
8.9
5
6.3
1
1.3
79
100.0
Room Confinement
Approximately half (50.6 percent) the victims were on room confinement status at time of death (table
23).15 As previously indicated, room confinement was defined as a behavioral sanction imposed on
youth that restricted movement for varying amounts of time. Room confinement did not include youth
assigned to their room during traditional nonwaking hours (9 p.m. to 6 a.m.). Compared to other facility
types, a much smaller percentage (16.7 percent) of suicide victims housed in residential treatment
centers were on room confinement status at time of death.
Table 23: Suicides in Juvenile Facilities, 19951999, by Victims Room Confinement Status and Facility Type
Room Confinement
Yes
No
Total
Detention Center
16
13
29
Training School /
Reception /
Residential
18
4
2
15
1
10
33
5
12
_____Combined_____
N
%
40
50.6
39
49.4
79
100.0
18
In addition, 85.0 percent of victims who committed suicide while on room confinement died during
waking hours (6 a.m. to 9 p.m.), a rate higher than that of victims who committed suicide during waking
hours but who were not on room confinement status (70.9 percent).
Suicide Precaution Status

A relatively small percentage (16.5 percent) of youth were on suicide precaution status at time of death
(table 24). Of the 13 victims on suicide precaution status, 10 were required to be observed at 15-minute
intervals, the three remaining youth were to be observed at continuous, 5-minute, and 60-minute
intervals, respectively. Despite their identified risk of suicide, almost half (6 of 13) these victims were
last observed more than 15 minutes before their suicides.
Table 24: Suicides in Juvenile Facilities, 19951999, by Victims Suicide Precaution Status and Facility Type
Suicide Precaution
Status
Yes
No
Total
Detention Center
7
22
29
Training School /
Reception /
Residential
5
0
1
28
5
11
33
5
12
_____Combined_____
N
%
13
16.5
66
83.5
79
100.0
Assessment by Qualified Mental Health Professional

National juvenile correctional standards and standard correctional practice indicate that confined youth
should be assessed as soon as possible by a qualified mental health professional (National Commission
on Correctional Health Care, 1995, 1999, 2004; Roush, 1996; Underwood and Berenson, 2001), with
Performance-based Standards requiring an assessment within 7 days of entry into the facility (Council of
Juvenile Correctional Administrators, 2003).16 For purposes of this study and consistent with national
standards, qualified mental health professional was defined as an individual who by virtue of his or her
education, credentials, and experience is permitted by law to evaluate and care for the mental health
needs of patients. This definition includes, but is not limited to, a psychiatrist, psychologist, clinical
social worker, and psychiatric nurse. This examination by a qualified mental health professional is
separate from an initial intake screening.
Most (69.6 percent) victims were assessed by a qualified mental health professional (table 25).
Compared to other facility types, a smaller percentage (34.5 percent) of suicide victims housed in
detention centers received mental health assessments. However, slightly more than half (51.7 percent)
the detention center victims committed suicide within the first 6 days of confinement (see table 9),
possibly precluding the opportunity for assessment.
Table 25: Suicides in Juvenile Facilities, 19951999, by Victims Assessment by a Qualified Mental Health Professional
(QMHP) and Facility Type
QMHP Assessment
Yes
No
Total
Detention Center
10
19
29
Training School /
Reception /
Residential
29
5
11
4
0
1
33
5
12
_____Combined_____
N
%
55
69.6
24
30.4
79
100.0
Almost half (49.1 percent) the victims receiving a mental health assessment had a contact visit with a
qualified mental health professional within 6 days of death (table 26). However, the data also showed
19
that 20.0 percent of assessed victims had not been assessed within 30 days of death, suggesting that
slightly less than half (44.3 percent) the victims in the study either had never been assessed by a
qualified mental health professional or had not been assessed within 30 days of death.
Table 26: Suicides in Juvenile Facilities by Victims Who Were Assessed by a Qualified Mental Health Professional
(QMHP), 19951999, by Time of Victims Last Contact With QMHP and Facility Type
Last Contact With QMHP
Less than 24 hours
13 days
46 days
713 days
1430 days
12 months
34 months
56 months
79 months
1012 months
More than 12 months
Total
Detention Center
2
5
1
0
1
1
0
0
0
0
0
10
Training School /
Reception /
Residential
3
1
3
3
1
3
4
0
1
8
2
2
3
0
1
2
0
0
0
0
0
1
0
0
1
0
0
1
0
1
3
1
0
29
5
11
_____Combined_____
N
%
9
16.4
12
21.8
6
10.9
12
21.8
5
9.1
3
5.5
0
0.0
1
1.8
1
1.8
2
3.6
4
7.3
55
100.0
Juvenile Facility Characteristics

Facility Type and Population
As previously indicated, this national survey of juvenile suicides in confinement found that 41.8 percent
of the juvenile suicides took place in training school/secure facilities, 36.7 percent occurred in detention
centers, 15.2 percent in residential treatment centers, and 6.3 percent in reception/diagnostic centers. In
addition, almost half (48.1 percent) the suicides occurred in facilities administered by state agencies,
39.2 percent took place in county facilities, and 12.7 percent in private programs. Two-thirds (67.1
percent) occurred in facilities with populations of 200 or fewer youth, and 41.8 percent occurred in
facilities with 50 or fewer youth (table 27).17 The study did not find any evidence to suggest that
overcrowding was a contributing factor to juvenile suicide. In fact, some two-thirds (67.6 percent) of
suicides took place in facilities that were at or below bed capacity, with an additional 9.5 percent of
suicides occurring in facilities that were slightly (less than 10 percent) over capacity.
Table 27: Suicides in Juvenile Facilities, 19951999, by Population of Facility and Facility Type
Training School /
Reception /
Residential
Facility Population
50 or fewer youth
20
4
1
8
7
9
2
2
51200 youth
1
11
1
0
201500 youth
0
7
0
0
5011,000 youth
More than 1,000 youth
0
1
0
0
Unknown
1
1
1
2
Total
29
33
5
12
_____Combined_____
N
%
33
41.8
20
25.3
13
16.5
7
8.9
1
1.3
5
6.3
79
100.0
20
Written Suicide Prevention Policy

National juvenile correctional standards and standard correctional practice indicate that juvenile
facilities should have a written suicide prevention policy that details the identification and management
of suicidal youth (American Correctional Association, 1991; Council of Juvenile Correctional
Administrators, 2003; Hayes, 1999; National Commission on Correctional Health Care, 1995, 1999,
2004; Roush, 1996). The vast majority (78.5 percent) of suicides occurred in facilities that maintained a
written suicide prevention policy at the time of the suicide (table 28), although this was less true for
suicides that took place in detention centers (62.1 percent).
Table 28: Suicides in Juvenile Facilities, 19951999, by Facilitys Maintenance of a Written Suicide Prevention Policy
and Facility Type
Written Suicide Prevention
Policy
Yes
No
Total
Detention Center
18
11
29
Training School /
Reception /
Residential
30
4
10
3
1
2
33
5
12
_____Combined_____
N
%
62
78.5
17
21.5
79
100.0
Intake Screening for Suicide Risk

Most (70.9 percent) suicides took place in facilities that maintained an intake screening process to
identify suicide risk of youth entering the facility (table 29), although this was true for less than half
(48.3 percent) the suicides in detention centers. This finding is consistent with other OJJDP data
suggesting that approximately 70 percent of confined youth are screened for suicide risk (OJJDP, 2002).
Table 29: Suicides in Juvenile Facilities, 19951999, by Intake Screening of Victim for Suicide Risk and Facility Type
Intake Screening
Yes
No
Total
Detention Center
14
15
29
Training School /
Reception /
Residential
29
5
8
4
0
4
33
5
12
_____Combined_____
N
%
56
70.9
23
29.1
79
100.0
Suicide Prevention Training

More than half (57.0 percent) the juvenile suicides occurred in facilities that provided some type of
suicide prevention training (pre-service, annual, or periodic) to direct care staff (table 30).
Table 30: Suicides in Juvenile Facilities, 19951999, by Facilitys Provision of Suicide Prevention Training and Facility
Type
Suicide Prevention
Training
Yes
No
Total
Detention Center
16
13
29
Training School /
Reception /
Residential
19
4
6
14
1
6
33
5
12
_____Combined_____
N
%
45
57.0
34
43.0
79
100.0
Of the 45 suicides that occurred in facilities that provided suicide prevention training, two-thirds (66.7
percent) were in facilities that provided annual instruction (table 31), with training schools/secure
facilities providing the lowest percentage (42.1 percent) of annual training. Only 37.9 percent (30 of 79)
21
of the suicides took place in facilities that provided annual suicide prevention training to their direct care
staff.
Table 31: Suicides in Juvenile Facilities That Provide Suicide Prevention Training, 19951999, by Frequency of (Annual)
Training and Facility Type
Annual Suicide
Prevention Training
Yes
No
Total
Detention Center
13
3
16
Training School /
Reception /
Residential
8
4
5
11
0
1
19
4
6
_____Combined_____
N
%
30
66.7
15
33.3
45
100.0
Approximately half (51.1 percent) the suicides in facilities that provided suicide prevention training
were in facilities that provided the training in a 1- or 2-hour block (table 32). Only 3 suicides took place
in a facility that provided a full day (78 hours) of instruction.
Table 32: Suicides in Juvenile Facilities That Provide Suicide Prevention Training, 19951999, by Duration of Training
and Facility Type
Duration of Suicide
Prevention Training
12 hours
34 hours
56 hours
78 hours
Unknown
Total
Detention Center
11
3
0
1
1
16
Training School /
Reception /
Residential
8
2
2
1
2
1
1
0
1
2
0
0
7
0
2
19
4
6
_____Combined_____
N
%
23
51.1
7
15.6
2
4.4
3
6.7
10
22.2
45
100.0
Certification in Cardiopulmonary Resuscitation

Most (68.4 percent) suicides occurred in facilities where all direct care staff had received certification in
cardiopulmonary resuscitation (CPR) (table 33), although this was true to a lesser degree (54.5 percent)
in training schools/secure facilities.
Table 33: Suicides in Juvenile Facilities, 19951999, by Staff Certification in Cardiopulmonary Resuscitation (CPR) and
Facility Type
Staff
Certification in CPR
Yes
No
Total
Detention Center
23
6
29
Training School /
Reception /
Residential
18
4
9
15
1
3
33
5
12
_____Combined_____
N
%
54
68.4
25
31.6
79
100.0
Suicide Precaution Protocol

The overwhelming majority (90.0 percent) of victims were located in facilities that maintained a suicide
precaution protocol for the observation of youth (excluding closed-circuit television monitoring) at time
of suicide (table 34).
22
Table 34: Suicides in Juvenile Facilities, 19951999, by Facilitys Maintenance of a Suicide Precaution Protocol and
Facility Type
Suicide Prevention
Protocol
Yes
No
Total
Detention Center
25
4
29
Training School /
Reception /
Residential
32
5
9
1
0
3
33
5
12
_____Combined_____
N
%
71
90.0
8
10.0
79
100.0
Of these 71 victims, less than half (47.9 percent) were in facilities where constant observation was the
highest level of suicide precaution in the facility, including only 28.0 percent of suicides in detention
centers (table 35). A sizable number (36.6 percent) were in facilities that reported observation at 15minute intervals as the highest suicide precaution level.
Table 35: Suicides in Juvenile Facilities That Maintain a Suicide Prevention Protocol, 19951999, by Highest Frequency
Level of Observation and Facility Type
Highest Frequency Level
of Observation
Constant
Every 5 minutes
Every 10 minutes
Every 15 minutes
Every 30 minutes
Unknown
Total
Detention Center
7
3
0
12
2
1
25
Training School /
Reception /
Residential
18
3
6
1
1
2
1
0
0
12
1
1
0
0
0
0
0
0
32
5
9
_____Combined_____
N
%
34
47.9
7
9.9
1
1.4
26
36.6
2
2.8
1
1.4
71
100.0
Safe Housing
Less than half (45.6 percent) the suicides occurred in a facility that had a housing process by which a
suicidal youth would be assigned to a safe and protrusion-free room (table 36). Although the majority
(60.5 percent) of suicides in training schools/secure facilities and reception/diagnostic centers took place
in a facility that provided safe and protrusion-free housing for suicidal youth, this was true for only 34.5
percent of the suicides in detention facilities and 25.0 percent of the suicides in residential treatment
centers.
Table 36: Suicides in Juvenile Facilities, 19951999, by Facilitys Provision of Safe Housing for Suicidal Youth and
Facility Type
Safe Housing
Yes
No
Total
Detention Center
10
19
29
Training School /
Reception /
Residential
20
3
3
13
2
9
33
5
12
_____Combined_____
N
%
36
45.6
43
54.4
79
100.0
Mortality Review
National juvenile correctional standards recommend that a mortality review be conducted following
each suicide (Hayes, 1999; National Commission on Correctional Health Care, 1995, 1999, 2004;
Roush, 1996). For purposes of this study, mortality review is defined as a multidisciplinary committee
process that examined the events surrounding the death to determine if the incident was preventable. The
review process might include recommendations aimed at reducing the opportunity of future deaths. The
process also attempts to identify any possible precipitating factors that may have caused the suicide.
23
Most (64.6 percent) respondents reported that a mortality review was conducted following the juvenile
suicide (table 37), although deaths in detention centers were reviewed to a lesser degree (51.7 percent).
Table 37: Suicides in Juvenile Facilities, 19951999, by Mortality Review of Suicide and Facility Type
Mortality Review
Yes
No
Total
Detention Center
15
14
29
Training School /
Reception /
Residential
21
4
11
12
1
1
33
5
12
_____Combined_____
N
%
51
64.6
28
35.4
79
100.0
Of the suicides that occurred in facilities that conducted mortality reviews, precipitating factors were
identified for more than half (58.8 percent). These factors include:
Fear of waiver to adult system, transfer to a more secure juvenile facility, or pending undesirable
placement (including home) (10 cases).
Recent death of a family member (6 cases).
Failure in the program (5 cases).
Contagion (from another recent suicide in facility) (3 cases).
Parent(s) threat of/failure to visit (2 cases).
Other (i.e., loss of relationship, close proximity to birthday, suicide pact with peer, ridicule from
peers) (4 cases).
In several cases, more than one precipitating factor was identifiedonly the perceived leading factor is
listed above. However, precipitating factors were offered by respondents for only 30 (38.0 percent) of
the 79 suicides reported in this study.
24
Special Considerations
Comprehensive Suicide Prevention Programming
National juvenile correctional standards and standard correctional practice require that juvenile facilities
have a written suicide prevention policy that includes a variety of components (American Correctional
Association, 1991; Council of Juvenile Correctional Administrators, 2003; Hayes, 1999; National
Commission on Correctional Health Care, 1995, 1999, 2004; Roush, 1996). In OJJDPs Conditions of
Confinement study, researchers evaluating suicide prevention practices used four specific assessment
criteria (written procedures, intake screening, staff training, and close observation), and found that 89
percent of juveniles were housed in facilities with a written suicide prevention plan, 72 percent were in
facilities that screened juveniles for suicide risk at admission, 75 percent were in facilities where staff
were trained in suicide prevention, and 50 percent were in facilities that monitored suicidal youth at least
four times per hour. However, the OJJDP study found that only 25 percent of confined juveniles were in
facilities that conformed to all four suicide prevention assessment criteria (Parent et al., 1994).
Although the OJJDP study could not assess the quality of each of the four criteria operating within the
juvenile facilities because most data were self-reported, other findings were equally revealing. For
example, facilities that conducted screening for suicide risk at admission and trained their staff in suicide
prevention had lower rates of suicidal behavior among their residents than those that did not.
Furthermore, although written policies to provide close observation of suicidal residents did not appear
to significantly reduce the rate of suicidal behavior, they could play a role in reducing completed
suicides because these policies are often implemented after the risk is recognized (Parent et al., 1994).
For this national survey of juvenile suicide in confinement, data were collected to determine whether
facilities sustaining a suicide had comprehensive suicide prevention programming in place at time of
death. Consistent with national juvenile correctional standards, comprehensive suicide prevention
programming included the following seven critical components: written policy, intake screening,
training, CPR certification, observation, safe housing, and mortality review (Hayes, 1999). The vast
majority (78.5 percent) of respondents in this study indicated they had a written suicide prevention
policy at time of suicide (see table 28). However, only 20.3 percent occurred in facilities that had
programming encompassing all seven suicide prevention components (table 38). The degree to which
suicides occurred in a facility that had all seven suicide prevention components varied considerably by
facility type: detention centers (10.3 percent), training schools/secure facilities (24.2 percent),
reception/diagnostic centers (40.0 percent), and residential treatment centers (25.0 percent).
Consistent with OJJDPs Conditions of Confinement study, these findings suggest that, although there
was a higher rate of compliance with individual suicide prevention components, few facilities that
sustained a suicide had all components of a comprehensive suicide prevention program.
25
Table 38: Suicides in Juvenile Facilities, 19951999, by Number of Suicide Prevention Components Implemented by the
Facility and Facility Type
Suicide Prevention
Training School /
Reception /
Residential
Components
0
2
0
0
0
1
2
0
0
1
2
2
3
0
1
3
4
2
0
1
4
4
7
1
3
5
6
5
1
1
6
6
8
1
2
7
3
8
2
3
Total
29
33
5
12
_____Combined_____
N
%
2
2.5
3
3.8
6
7.6
7
8.9
15
19.0
13
16.5
17
21.5
16
20.3
79
100.0
Room Confinement
Isolation and segregation, terms commonly used in the adult corrections field, are rarely heard in the
juvenile corrections system. Instead, isolation in a juvenile facility is often referred to as room
confinement, a term that includes time-out, quiet time, restriction, adjustment, conflict resolution, room
lock, and off-program. Youth who are removed from the room in which they normally sleep are often
held in seclusion, exclusion, separation, and special management. In addition, the youth of an entire
housing unit may be confined to their rooms at various parts of a day.
In addition, although room confinement is often used both as a behavioral sanction resulting from
assaultive or disruptive behavior and as a form of quarantine for newly arrived residents or those in need
of protective custody, it is also used for suicidal youth. For example, a recent U.S. Department of Justice
investigation of conditions of confinement within a state juvenile correctional system found that:
Girls in the SIU (Special Intervention Unit) at Columbia are punished for acting out or being
suicidal by being placed in a cell called the dark room. The dark room is a locked,
windowless isolation cell with lighting controlled by staff. When the lights are turned out, as the
girls reported they are when the room is in use, the room is completely dark. The room is
stripped of everything but a drain in the floor which serves as a toilet.
Most girls are stripped naked when placed in the dark room. According to Columbia staff, the
reason girls must remove their clothing before being placed in the room is that there is metal
grating on the ceiling and the cell door which could be used for hanging attempts by suicidal
girls. (U.S. Department of Justice, 2003:7)
Although room confinement and isolation can be effective behavioral management tools when
appropriately used for short durations that are closely monitored and clearly documented (see National
Commission on Correctional Health Care, 1999, 2004), the presence of a separate isolation unit within a
juvenile facility may provide an environment in which an overreliance on isolation is likely to be the
primary behavior management strategy (Mitchell and Varley, 1990). Federal investigations of several
juvenile corrections systems throughout the country have found both excessive and unjustified use of
isolation and room confinement (United States v. State of Arizona, 2004; United States v. State of
Georgia, 1998; United States v. Commonwealth of Kentucky, 1995; United States v. State of Louisiana,
26
2000; United States v. State of Maryland, 2004; United States v. Commonwealth of Puerto Rico, 1997).
In one example, the U.S. Department of Justice found that:
The use of isolation rooms at the facilities is improper and potentially abusive. Staff isolate youth
far too frequently and isolation practices are generally outside the requirements of residential
treatment or facility security. Due process procedures are significantly lacking and youth are
isolated for extended periods of time to suit the staff. One youth was isolated for fifteen days for
acting out and planning an escape. Another youth was isolated for three days for being
sarcastic with a smart mouth. In practice, staff use the isolation rooms to excessively punish
youth or simply when the staff are tired of dealing with a specific youth (U.S. Department of
Justice, 1995:3).
Parent et al. (1994) found that, although the use of isolation varied considerably among facility types,
the rate of shorter isolation (less than 24 hours) was 57 incidents per 100 youth and the rate of longer
isolation (more than 24 hours) was 11 incidents per 100 youth.18 Another national census found that
approximately 17 percent of confined youth spend more than 4 hours per month in room confinement
(OJJDP, 2002). In addition, an assessment of conditions of confinement in one juvenile detention
facility found that approximately 10 percent of confined youth were on disciplinary room confinement
status on any given day, often for relatively minor incidents such as horseplay and being disrespectful to
staff (John Howard Association, 1998). As a result of subsequent litigation, the facility entered into a
consent decree requiring that:
[R]oom confinement for therapeutic purposes will be employed only upon written order of a . . .
qualified mental health professional . . . who has personally observed and examined the resident
and has clinically determined that the use of room confinement is necessary to prevent the
recipient from causing imminent physical harm to himself or others, and that no other less
restrictive intervention is appropriate . . . disciplinary room confinement is used only when no
less restrictive form of punishment is appropriate, and that youth who are confined to their rooms
are permitted to rejoin the general population when capable of doing so without further
disruption to the detention operations (Jimmy Doe et al. v. Cook County et al., 2002:23, 3435).
Data from this national survey of juvenile suicide in confinement appear to show a strong relationship
between juvenile suicide and room confinement62 percent of victims had a history of room
confinement before their death and 50 percent of victims were on room confinement status at the time of
their death. Perhaps more importantly, 85 percent of victims who died by suicide while on room
confinement status died during waking hours (6 a.m. to 9 p.m.).
Although the relationship between suicide and isolation is well documented in the literature on adult
inmate suicide (Bonner, 1992; Hayes, 1989), the issue has not been previously explored in depth
regarding juvenile suicide. However, Liebling (1993) found that suicidal youth in confinement appeared
to feel more isolated, received fewer visits, wrote fewer letters, and missed loved ones more than
nonsuicidal youth in custody. Parent et al. (1994) found that 77 percent of confined youth were in
facilities that permitted the use of isolation and that rates of suicidal behavior appeared to be higher for
youth who were isolated from their peers or assigned to single room housing. Porter (1996) theorized
that suicides were more likely to occur in juvenile correctional facilities when youth are further removed
from each other, were more alienated, and lacked social integration. Facility officials that promoted
these policies were clearly more likely to experience higher rates of suicidal behavior. Similarly, policies
27
and practices that lessened the degree to which confined youth were allowed contact and interaction
with one another could increase a facilitys risk of experiencing a higher rate of suicidal behavior
(Porter, 1996). In conclusion, as one clinician succinctly noted: When placed in a cold and empty room
by themselves, suicidal youth have little to focus onexcept all of their reasons for being depressed and
the various ways that they can attempt to kill themselves (Boesky, 2002:210).
Corrective Action
This national survey of juvenile suicide in confinement found that suicide was a seminal event for many
facilities. Approximately two-thirds of respondents reported that a mortality review was conducted
following the juvenile suicide. In addition, 86.3 percent of these mortality reviews resulted in
recommendations to reduce the likelihood of future suicides in the facility. The most frequent
recommendations included:
Developing/revising suicide prevention policies (20 cases).
Removing room hazards (20 cases).
Increasing suicide prevention training (18 cases).
Fostering better internal communication among staff and/or external communication with outside
agencies (11 cases).

Increasing supervision of youth (10 cases).
Hiring additional direct care staff (9 cases).
Increasing onsite qualified mental health professionals and/or daily assessment of suicidal youth (8
cases).
Providing critical incident stress debriefing to staff and youth (6 cases).
In three cases, facility staff were either disciplined or fired; in two other cases, the facilities were closed.
During the 16-month period from October 1996 through January 1998, one facility sustained five
juvenile suicides, three of which occurred during a 2-week period. As a result of the deaths, the facility
underwent dramatic changes, including the following:
For several weeks during and after the crisis, lights in all resident rooms were left on 24 hours a day
and all youth were observed at 15-minute intervals.
Critical incident stress debriefing was given to all staff and youth.
The number of direct care staff and qualified mental health professionals was dramatically increased.
Basic suicide prevention training was increased to 8-hour instruction, and a 2-hour annual refresher
training was developed.
28
Housing units were renovated to ensure that they provided better staff visibility of youth and were
free of obvious protrusions and hazards that might facilitate suicide.
Suicide prevention policies and screening/assessment forms were revised.
In April 1998, an oversight committee of the state legislature met in special session and appropriated
approximately $2 million to fund the corrective action measures. Finally, the facility faced and
subsequently settled civil litigation arising out of four of the five suicides.
It is not unusual for corrective measures to be implemented following a death or litigation (Hayes,
1994). For example, in March 2003, the Civil Rights Division of the U.S. Department of Justice entered
into a settlement agreement with the State of Arkansas regarding conditions of confinement (including
two suicides) at one of its juvenile detention facilities. The agreement required several substantive
remedial measures, including increased suicide prevention training for staff, better communication
among staff in managing suicidal youth, and revisions in the facilitys suicide prevention policy to
appropriately clarify what type of staff can place a juvenile on suicide precautions, specify what type of
staff can remove a juvenile from such precautions, and provide for sufficient and appropriate daily
interactions between qualified mental health personnel and every juvenile on suicide precautions
(United States v. State of Arkansas, 2003:4). Similar corrective action for juvenile suicide prevention
programming has been agreed to through settlement agreements in Arizona (United States v. State of
Arizona, 2004), Georgia (United States v. State of Georgia, 1998), Kentucky (United States v.
Commonwealth of Kentucky, 1995), Louisiana (United States v. State of Louisiana, 2000), and Puerto
Rico (United States v. Commonwealth of Puerto Rico, 1997).
29
Conclusion
Although youth suicide in the community has been identified as a major public health problem, juvenile
suicide in confinement has received inadequate attention. The primary goal of this project was to
determine the extent and distribution of juvenile suicides in confinement by gathering descriptive data
on demographic characteristics of each victim, characteristics of the incident, and characteristics of the
juvenile facility that sustained the suicide. In the end, the study compiled significant data on juvenile
suicides throughout the country. It is hoped that these findings can be used as a resource for juvenile
justice practitioners to expand their knowledge and for juvenile correctional administrators to create
and/or revise sound policies and training curriculums on suicide prevention.
Comprehensive Suicide Prevention Programming

Although the study found a significant rate of compliance with individual suicide prevention
components, few juvenile facilities that sustained a suicide had all the components of a comprehensive
suicide prevention program. Consistent with national correctional standards and practices, all juvenile
facilities, regardless of size and type, should have a detailed written suicide prevention policy that
addresses each of the following critical components (Council of Juvenile Correctional Administrators,
2003; Hayes, 1999, 2000; National Commission on Correctional Health Care, 1999, 2004; Roush,
1996):
Training. All facility, medical, and mental health staff should receive 8 hours of initial suicide
prevention training, followed by a minimum of 2 hours of annual refresher training. Training should
provide information about predisposing factors, high-risk periods, warning signs and symptoms,
identifying suicidal behavior despite the denial of risk, and components of the facilitys suicide
prevention policy.
Identification/screening. Intake screening for suicide risk should take place immediately upon
confinement and prior to housing assignment and include inquiry regarding current and past suicidal
behavior, earlier mental health treatment, recent significant loss, suicidal behavior by a family
member or close friend, suicide risk during prior contact with or confinement in agency, and
arresting or transporting officers opinion whether youth is currently at risk. The policy should
include procedures for referral to mental health personnel for further assessment.19
Communication. At a minimum, facility procedures should enhance communication among facility
staff (including medical and mental health personnel) and the arresting/transporting officer(s), family
members, and suicidal youth.
Housing. Excessive and unjustified isolation should be avoided. Whenever possible, suicidal youth
should be housed in the general population, mental health unit, or infirmary, in close proximity to
staff. Youth should be housed in suicide-resistant, protrusion-free rooms. Removal of clothing
(excluding belts and shoelaces) and use of restraints should be avoided when possible, and should
only be used for short periods of time when the youth is engaging in self-destructive behavior.
30
Levels of supervision. Two levels are normally recommended for suicidal youth:
Close observationreserved for youth who are not actively suicidal, but express suicidal
ideation and/or have recent histories of self-destructive behavior and are now viewed as
potentially suicidalrequires supervision at staggered intervals not to exceed every 15 minutes.
In addition, a youth who denies suicidal ideation or does not threaten suicide, but demonstrates
other concerning behavior (through actions, current circumstances, or recent history) indicating
the potential for self-injury, should be placed on close observation.
Constant observationreserved for youth who are actively suicidal (threatening/engaging in the
act)requires supervision on a continuous, uninterrupted basis.
In addition, an intermediate level of supervision can be used with observation at staggered intervals
not to exceed every 5 minutes. Other supervision aides (e.g., closed-circuit television, companions or
watchers) can be used as a supplement to, but not as a substitute for, these observation levels.
Intervention. A facilitys policy regarding intervention should be threefold:
All staff should be trained in standard first aid and cardiopulmonary resuscitation (CPR).
Any staff member who discovers a youth attempting suicide should immediately respond, survey
the scene to ensure the emergency is genuine, alert other staff to call for medical personnel, and
begin life-saving measures.
Staff should never presume that the youth is dead, but rather initiate and continue appropriate
life-saving measures until relieved by medical personnel.
All housing units should contain a first aid kit, pocket mask or mouth shield, Ambu bag, and rescue
tool (to quickly cut through fibrous material).
Reporting. In the event of an attempted or completed suicide, all appropriate facility officials should
be notified through the chain of command. All staff who came in contact with the victim before the
incident (or in responding to the incident) should submit a statement as to their full knowledge of the
youth and the incident.
Followup/mortality review. All staff (and youth) involved in the incident should be offered critical
incident stress debriefing. If resources permit, a psychological autopsy is recommended. Every
completed suicide and serious suicide attempt (i.e., requiring hospitalization) should be examined by
a review process. Ideally, the review should be coordinated by an outside agency or facility to ensure
impartiality. The mortality review, separate and apart from other formal investigations that may be
required to determine the cause of death, should be multidisciplinary (i.e., involve correctional,
mental health, and medical personnel) and include a critical inquiry of the following:
The circumstances surrounding the incident.
Facility procedures relevant to the incident.
31
All relevant training received by involved staff.

Pertinent medical and mental health services/reports involving the victim.
Possible precipitating factors leading to the suicide.
Recommendations, if any, for changes in policy, training, physical plant, medical or mental
health services, and operational procedures.
Staff Training
Although findings from this study suggest that some type of suicide prevention training was conducted
in most facilities, only one-third of facilities experiencing a suicide provided annual training and very
few facilities provided a full day of training to their personnel. On the basis of this information, coupled
with recent census data indicating that almost a quarter of all intake screening for suicide risk in juvenile
facilities throughout the country is conducted by untrained personnel (OJJDP, 2002), administrators
would be prudent to ensure that all direct care, medical, and mental health personnel receive both preservice and annual instruction in suicide prevention.
Further, for the most part, current suicide prevention training curriculums used in juvenile facilities
throughout the country rely on information gathered about adult inmate suicide and youth suicide in the
community. Findings from this study demonstrate that several differences exist between adult inmate
suicide and suicides in juvenile facilities, including confinement status, intoxication, length of
confinement before suicide, and time of day. These significant differences should discourage using
training curriculums from the adult correctional field in the prevention of suicide in juvenile facilities.
Although suicide prevention in all types of correctional facilities has common ground, the differences
between juvenile and adult inmate suicides warrant development within juvenile facilities of separate
training curriculums targeted to suicide prevention.
Basic suicide prevention training for direct care, medical, and mental health personnel who work in
juvenile facilities should include discussion of the following issues: why facility environments are
conducive to suicidal behavior, staff attitudes about suicide, potential predisposing factors to suicide,
warning signs and symptoms, identification of suicide risk despite the youths denial, high-risk periods,
components of the facilitys suicide prevention policy, instruction regarding the proper role of staff in
responding to a suicide attempt (including a mock drill), critical incident stress debriefing, liability
issues, and recent serious suicide attempts and/or suicides within the facility/agency.
Staff are at a distinct disadvantage in the identification and management of suicidal youth if they have
not been adequately trained in suicide prevention.
Detention Centers
Findings from this study indicate that a significant percentage of unknown responses to survey questions
relating to several personal characteristics of the victim (including histories of substance abuse, medical
problems, emotional abuse, physical abuse, sexual abuse, and mental illness) came from detention
centers.20 In addition, suicide victims housed in detention centers had a lower percentage of reported
32
histories of suicidal behavior, perhaps suggesting that these facilities fail to inquire about such history.
Finally, although the study found that many facility types lacked comprehensive suicide prevention
programming at time of suicide, detention centers had the lowest percentage (approximately 10 percent).
According to the National Juvenile Detention Association (NJDA), juvenile detention is defined as the
temporary and safe custody of juveniles who are accused of conduct subject to the jurisdiction of the
court who require a restricted environment for their own and the communitys protection while pending
legal action (National Juvenile Detention Association, 1990:1). The findings from this study support
NJDAs position that youth with severe mental illness should be provided services in the appropriate
therapeutic environment . . . when juvenile detention facilities are forced to house youth with severe
mental health issues, NJDA promotes the provision of adequate services by appropriately trained and
licensed specialists (National Juvenile Detention Association, 2001). Deficiencies in intake screening
and overall suicide prevention programming within detention centers experiencing suicides warrant
immediate attention to ensure the provision of basic, yet comprehensive, suicide prevention
programming.
Data Limitations
Given the epidemiological data regarding youth suicide in the community, coupled with the increased
risk factors associated with confined youth, the reported number of suicides in this study would appear
low. However, this study identified more deaths per year than a contemporary national census of
juvenile facilities (OJJDP, 2002), and many experts believe that the current self-reporting of juvenile
suicides in custody is underreported (Sullivan, 1995; Twedt, 2001b). Despite concerted efforts by
project staff to locate all possible juvenile suicides during the 5-year study period, whether every death
was identified remains uncertain.
Approximately 13 percent of the reported suicides in this study were identified through nontraditional
sources (including newspaper articles and the project directors consultation with facilities sustaining the
deaths). In addition, more than one-third of the reported suicides were unknown to any state agency
(e.g., departments of juvenile corrections or agencies responsible for licensing and regulatory services).
Most of the deaths that were unknown to state agencies occurred in either county detention centers or
private residential treatment centers.21 Many of the reported suicides in this study were also unknown to
many child advocacy agencies.
Research
The problem of juvenile suicides in confinement would benefit from further research. For example,
possible precipitating factors to the suicides reported in this study were identified in only slightly more
than one-third of the cases. This indicates either uncertainty of the term, inadequate review of the
circumstances surrounding the death, limited knowledge of the victims background, or all of the above.
Regardless of the reasons, further inquiry of possible precipitating factors of juvenile suicide is critically
important to increasing understanding of the problem.
Although approximately half the victims in this study were under room confinement at the time of their
death, further research is necessary to explore the relationship between suicide and isolation. Despite the
fact that youth were alone in their rooms between the hours of midnight and 6 a.m., with ample
33
opportunity and privacy to engage in self-injurious behavior, few suicides took place during this 6-hour
period. Instead, approximately half of all deaths occurred during a 6-hour period between 6 p.m. and
midnightalmost a third occurred between 6 p.m. and 9 p.m. Perhaps most important, the majority of
victims who committed suicide while on room confinement status died during waking hours. These are
periods in which youth are normally either involved in programming or back on their housing units,
interacting with staff and peersperhaps more likely to become involved in confrontations and/or
behavior that results in room confinement. Further research is needed to explore this issue.
Finally, although only a small percentage of victims committed suicide following more than 12 months
of custody, the average length of confinement before suicide for these youth was quite high (i.e.,
approximately 22 months), suggesting that prolonged confinement might have been one of the
precipitating factors in the suicides. This issue is also worthy of further study.
Challenges
Findings from this study pose formidable challenges for juvenile correctional and healthcare officials
and their staffs. For example, although room confinement remains a staple in most juvenile facilities, its
use needs to be carefully scrutinized. In addition, as data show that suicides can occur at any time during
a youths stay in a facility a continuum of comprehensive suicide prevention services aimed at the
collaborative identification, continued assessment, and safe management of youth at risk for self-harm,
is required to address the problem effectively.
34
Notes
1. The only national survey on the incidence of juvenile suicides in custody contained several flaws in
the calculation of suicide rates (Flaherty, 1980). Reanalysis of suicide rates in that survey found youth
suicide in juvenile detention centers to be more than four times greater than in the general population
(Memory, 1989).
2. Duclos et al. (1998) also found high rates of psychiatric disorders among Native American youth
confined in juvenile facilities.
3. The reporting period was October 1, 1999, to September 30, 2000.
4. The National Center for Health Statistics, Centers for Disease Control, which collects annual vital
statistics mortality data, does not separate out data between the community and custodial institutions,
nor does it collect data on the circumstances, characteristics, and precipitating causes of suicide. In
addition, although the Deaths in Custody Reporting Act of 2000 became Public Law No. 106297 on
October 13, 2000, the collected data is cursory, gathered on a voluntary basis, and is limited to the
cause, date, time, and place of death and age, sex, race, and legal status of the victim.
5. The National Center on Institutions and Alternatives was assisted on the project by two prominent
national juvenile justice organizations (the National Juvenile Detention Association and the Council of
Juvenile Correctional Administrators) and a consultant team composed of four prominent juvenile
justice practitioners and researchers (G. David Curry, Ph.D., Robert E. DeComo, Ph.D., Barbara C.
Dooley, Ph.D., and David W. Roush, Ph.D.). In addition, Cedrick Heraux, a doctoral student at
Michigan State University, provided both data entry and data analysis support to the project.
6. Facilities were identified through OJJDPs Census of Juveniles in Residential Placement (1999). A
small percentage of facilities were either closed or could not be located, and thus presumed to be closed.
7. To encourage a high rate of response, the cover letter was co-signed by officials of both the National
Juvenile Detention Association and the Council of Juvenile Correctional Administrators, and business
reply envelopes were enclosed with the survey instruments.
8. By definition, detention centers hold juveniles for short terms in a physically restrictive environment
pending juvenile court action, or following adjudication pending disposition, placement, or transfer.
Reception centers are short-term facilities that hold juveniles committed by courts and that do screening
and assessment to assign them to appropriate facilities. Training schools are long-term facilities in which
treatment and programming are provided in an environment with strict physical and staff controls.
Ranches, camps, and farms are long-term residential facilities that do not require the strict confinement
of a training school, often allowing offenders greater contact with the community. This last category
includes residential treatment center and boot camp.
9. During this followup process, the project director was assisted by staff of the Council of Juvenile
Correctional Administrators.
35
10. For comparative purposes, data collected from OJJDPs Census of Juveniles in Residential
Placement was limited to the following: gender, age, race, placement authority, most serious offense
charged, and adjudication status.
11. For purposes of this study, offenses were broken down into six categories: property offenses
included burglary, grand larceny, petty larceny, auto theft, robbery (other), receiving stolen property,
shoplifting, arson, breaking and entering, entering without breaking, counterfeiting, forgery,
embezzlement, vandalism, and carrying a concealed weapon; person offenses included murder,
negligent manslaughter, armed robbery, rape, indecent assault, assault, battery, sexual assault,
aggravated assault, and kidnapping; status offenses included running away, truancy, incorrigibility,
curfew violation, and loitering; probation violation offenses included any technical violation of the terms
of probation and/or parole; public order offenses included alcohol-related charges (intoxication, liquor
law violation, driving under the influence), resisting arrest, disorderly conduct, prostitution, sex offenses
(other), vagrancy, unauthorized use of a motor vehicle, and minor traffic offenses; and drug offenses
included possession, use, and distribution of any controlled dangerous substance or narcotic.
12. However, the average length of confinement for the 10 victims who committed suicide after more
than 12 months in custody was 21.8 months.
13. For comparative purposes, although lengths of stay within juvenile facilities throughout the country
vary considerably, earlier OJJDP research has shown the average length of stay in the four facility types
to be as follows: detention center (15 days), training school/secure facility (7.5 months),
reception/diagnostic center (34 days), and residential treatment center (6.5 months) (see Parent, Leiter,
Kennedy, Livens, Wentworth and Wilcox, 1994).
14. For the most part, survey respondents did not report the victims mental illness according to
Diagnostic and Statistical Manual (DSM) III or IV editions.
15. The circumstances that led to room confinement included failure to follow program rules or
inappropriate behavior (47.3 percent), threat of or actual physical abuse of staff or peers (42.1 percent),
and other (10.6 percent), which included two cases of standard procedure for new intake, one case of
court-ordered confinement, and one case of group confinement during a shift change.
16. In 1995, OJJDP contracted with the Council of Juvenile Correctional Administrators to develop,
field test, and implement performance-based standards for juvenile correctional and detention facilities.
The Performance-based Standards Project offers a systematic method for facilities to measure outcomes
and provides guidance for facilities to review their practices and to take corrective action.
17. This finding is somewhat consistent with an earlier OJJDP research finding that approximately 72
percent of juveniles are housed in facilities with 250 or fewer beds, although only 21 percent are housed
in facilities with 50 or fewer beds (see Parent et al., 1994).
18. Parent et al. (1994) could not calculate the incidence of time-out or other forms of room
confinement that occurred for durations of less than 1 hour because its use was frequently not
documented.
36
19. Several intake screening and assessment forms are available for the identification of suicide risk,
including the Intake Screening Form/Suicide Risk Assessment (Hayes, 1999), the recently developed
Juvenile Suicide Assessment (Galloucis and Francek, 2002), and the Massachusetts Youth Screening
Instrument-MAYSI-2 (Grisso and Barnum, 2000).
20. Communication among agencies also appeared to be a problem in several cases. Surveys were
received from several detention centers in which respondents complained that they had been temporarily
holding the victim for another jurisdiction (e.g., state correctional facility, probation office) and knew
little, if anything, about the youth. As one facility director stated, I do not know the answers to some of
these questions because the child was not from our county. He was being housed here in a state-contract
bed.
21. Although the study found that 27 percent of the total number of suicides (N=110) occurred in private
facilities, many of which were residential treatment centers, approximately two-thirds (67 percent) of
private facilities did not respond to survey requests.
37
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United States v. Commonwealth of Puerto Rico. 1997. Civil No. 94-2080 (CC), United States District
Court for the District of Puerto Rico, Remedial Provision of Settlement Agreement, October 7.
United States v. State of Arizona. 2004. CRIPA Investigation of Adobe Mountain School and Black
Canyon School in Phoenix, Arizona, and Catalina Mountain School in Tucson, Arizona, January 23.
United States v. State of Arkansas. 2003. United States District Court for the Eastern District of
Arkansas, Court-Entered Settlement, March 10.
United States v. State of Georgia. 1998. United States District Court for the Northern District of
Georgia, Memorandum of Agreement Between the United States and the State of Georgia Concerning
Georgia Juvenile Justice Facilities, March 18.
43
United States v. State of Louisiana. 2000. Civil No. 98-947-B-1, United States District Court for the
Middle District of Louisiana, Memorandum in Support of the United States Motion for a Preliminary
Injunction Regarding Conditions of Confinement at the Jena Juvenile Justice Center, March 30.
United States v. State of Maryland. 2004. Investigation of Cheltenham Youth Facility in Cheltenham,
Maryland, and the Charles H. Hickey, Jr. School in Baltimore, Maryland, April 9.
U.S. Department of Health and Human Services. 1999. The Surgeon Generals Call To Action To
Prevent Suicide, 1999. Washington, DC: U.S. Department of Health and Human Services.
U.S. Department of Justice, Civil Rights Division, Special Litigation Section. 1995. Notice of Findings
of Investigation of Various Kentucky Treatment Centers, July 28, 1995. Washington, DC: U.S.
Department of Justice, Civil Rights Division, Special Litigation Section.
U.S. Department of Justice, Civil Rights Division, Special Litigation Section. 2003. CRIPA
Investigation of Oakley and Columbia Training Schools in Raymond and Columbia, Mississippi, June
19, 2003. Washington, DC: U.S. Department of Justice, Civil Rights Division, Special Litigation
Section.
U.S. House of Representatives. 2004. Incarceration of Youth Who Are Waiting for Community Mental
Health Services in the United States. Washington, DC: U.S. House of Representatives, Committee on
Government Reform (Minority Staff), Special Investigations Division, July.
White, T., and Schimmel, D. 1995. Suicide prevention in federal prisons: A successful five-step
program. In Prison Suicide: An Overview and Guide to Prevention, edited by L. Hayes. Washington,
DC: U.S. Department of Justice, National Institute of Corrections, pp. 4657.
Woolf, A., and Funk, S. 1985. Epidemiology of trauma in a population of incarcerated youth. Pediatrics
75(3):463468.
44
Appendix A: Phase 1 Survey

Instrument
45
JUVENILE SUICIDE IN CONFINEMENT: A NATIONAL SURVEY
PHASE 1
NATIONAL CENTER ON INSTITUTIONS AND ALTERNATIVES
Acting as Collecting Agency for the
OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION
U.S. DEPARTMENT OF JUSTICE
Dear Facility Director:

On behalf of the Office of Justice and Delinquency Prevention, U.S. Department of Justice, the National Center on
Institutions and Alternatives is conducting the first national survey of juvenile suicide in confinement. The goal of this twophase project, which is being conducted with the full support and assistance of both the National Juvenile Detention
Association and Council of Juvenile Correctional Administrators, will be to gather descriptive data on demographic
characteristics of suicide victims, characteristics of the incident, and characteristics of the facility sustaining the suicide. A
report of the findings will be available as a resource tool for both juvenile justice practitioners in expanding their knowledge
base, and juvenile correctional administrators in creating and/or revising policies and training curricula on suicide prevention.
During Phase 1, we are sending this survey to all public and private juvenile detention centers/homes, training schools/secure
facilities, receptions diagnostic centers, residential treatment centers, and ranches, camps and farms in the country. On the
reverse side of this form, we are asking whether your current or former facility had a suicide and/or critical suicide attempt
during the five-year period of January 1, 1995 through December 31, 1999.
We ask that you complete and return this form within 30 days only if your current or former facility sustained a suicide
and/or critical suicide attempt during this time period. A self-addressed, business reply envelope is enclosed for your
convenience.
PARTICIPATION IN THIS SURVEY PROCESS IS VOLUNTARY. DATA PROVIDED WILL BE CODED AND
HELD IN THE STRICTEST CONFIDENCE. RESULTS OF THIS STUDY WILL BE PRESENTED IN SUMMARY
FASHION, THEREFORE, VICTIM AND FACILITY NAMES WILL NOT APPEAR IN ANY PROJECT REPORT.
Should you have any questions or concerns regarding completion of this form or our study, please contact Lindsay M. Hayes,
Project Director, National Center on Institutions and Alternatives (NCIA), 40 Lantern Lane, Mansfield, Massachusetts
02048, 508/337-8806, e-mail: Lhayesta@aol.com, or 508/337-3083 (fax).
Your cooperation and support of this project are greatly appreciated.
Sincerely,
46
DEFINITIONS
SUICIDE: Any death of a youth from a self-inflicted act. (Note: for purposes of this study, a youth who attempts suicide in the facility yet
later dies enroute to, or at, a hospital or other health care provider, is classified as a juvenile facility suicide and should be
reported below.)
CRITICAL SUICIDE ATTEMPT: Any self-inflicted act by a youth that results in transport our of the facility to a hospital or other health
care provider for medical attention and hospitalization.
DETENTION CENTER/HOME: A short-term facility that provides custody in a physically restricting environment pending adjudication
or, following, adjudication, pending disposition, placement, or transfer.
TRAINING SCHOOL/SECURE FACILITY: A long-term facility for adjudicated youth typically under strict physical/staff controls.
RECEPTION/DIAGNOSTIC CENTER: A short-term facility that screens youth committed by courts and assigns them to appropriate
facilities.
RANCH, CAMP, or FARM: A long-term residential facility for youth whose behavior does not require the strict confinement of a training
school, often allowing them greater contact with the community. Includes residential treatment facility and boot camp.
PUBLIC FACILITY: A facility under the direct administrative and operational control of a state or local government.
PRIVATE FACILITY: A facility (either profit or non-profit making) subject to government licensing but under the direct administrative
and operational control of a private enterprise. May include facilities that include public and private funding.
RESIDENT: Any youth, either classified as a delinquent, status offender, or non-offender (dependent, neglected, abused, etc.) that resides
in a public or private facility.
QUESTIONS
Please indicate below the total number of SUICIDES and/or CRITICAL SUICIDE ATTEMPTS that occurred in your current/former
facility during the five-year period of January 1, 1995 through December 31, 1999. complete this form only if your facility had a suicide(s)
and/or critical suicide attempt(s) during this time period.
1. Our facility had the following incidents by residents:
_____ SUIDCIDE(S) and/or _____ CRITICAL SUICIDE ATTEMPT(S) in 1995
2. Our facility is _____ PUBLIC
_____ PRIVATE
3. Our facility is best described as a:

_____ DETENTION CENTER/HOME
_____ TRAINING SCHOOL/SECURE FACILITY
_____ RECEPTION/DIOAGNOSTIC CENTER
_____ RANCH, CAMP, or FARM
_____ OTHER (Explain): ___________________________________________
THE FOLLOWING WILL BE USED FOR INTERNAL PURPOSES ONLY:

4. Completed by (name/title): _____________________________________________________________________
5. Name of Facility: ____________________________________________________________________________
6. Address: ___________________________________________________________________________________
City: _________________________________ State: ________________________ Zip code: ________
7. Telephone: __________________________________________________________________________________
8. Date Completed: _____________________________________________________________________________
PLEASE RETURN THIS COMPLETED FOR IN THE ENCLOSED
BUSINESS REPLY ENVELOPE WITHIN 30 DAYS TO:
NCIA 40 Lantern Lane Mansfield, MA 02048
or Fax to 508/337-3083
47
Appendix B: Phase 2 Survey

Instrument
48
PHASE 2
JUVENILE SUICIDE IN CONFINEMENT: A NATIONAL SURVEY
NATIONAL CENTER ON INSTITUTIONS AND ALTERNATIVES
Acting as Collecting Agency for the
OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION
U.S. DEPARTMENT OF JUSTICE
Items contained in this questionnaire refer to a suicide that occurred in your facility between January 1, 1995 and December
31, 1999 as identified during Phase 1 of the Juvenile Suicide in Confinement study. Please complete the following
questionnaire by checking the appropriate boxes and/or filling in the blanks. Definitions for certain terms used in this
questionnaire appear on page 7.
DATA PROVIDED WILL BE CODED AND HELD IN THE STRICTEST CONFIDENCE. RESULTS OF THIS
STUDY WILL BE PRESENTED IN SUMMARY FASHION, THEREFORE, VICTIM AND FACILITY NAMES
WILL NOT APPEAR IN ANY PROJECT REPORT.
We ask that you complete and return this questionnaire within 30 days. A self-addressed, business reply envelope is enclosed
for your convenience. Should you have any questions or concerns regarding completion of this questionnaire, please contact
Lindsay M. Hayes, Project Director, National Center on Institutions and Alternatives (NCIA), 40 Lantern Lane, Mansfield,
Massachusetts 02048, 508/337-8806, e-mail: Lhayesta@aol.com, or 508/337-3083 (fax).
NAME OF FACILITY ________________________________________ STATE __________
PART A: PERSONAL CHARACTERISTICS OF VICTIM

1) Victims Name (or any other identifiable notation):
_____________________________________________________________________________________________
Last
First
Middle
2) Race/Ethnicity:
(1) _____ Caucasian

(2) _____ African-American
(3) _____ Hispanic
(4) _____ American Indian

(8) _____ Other (Specify __________)
(9) _____ Unknown
3) Sex:
(1) _____ Male
(2) _____ Female
4) Date-of-Birth:
___/___/___
5) Living Status:
(1) _____ Self

(2) _____ One Parent
(3) _____ Both Parents
(4) _____ Relatives
or
_____ Years-Old
(5) _____ Foster Parent/Guardian

(8) _____ Other (Specify __________)
(9) _____ Unknown
6) Please specify Current Charge(s) for which the victim was confined at time of suicide and whether victim was being Detained or had
been Committed on those charge(s).
Charge(s)
____________________________________________
____________________________________________
____________________________________________
Detained
(1) _____
(2) _____
(3) _____
Committed
(1) _____
(2) _____
(3) _____
49
-2-
7) Did the victim have a record of Prior Arrests?

(1) _____ Yes
(2) _____ No
8) If the victim had a prior arrest record, specify the Prior Charges.
Prior Charge(s)
____________________________________________
____________________________________________
____________________________________________
Date
__________
__________
__________
9) What was the total Length of Confinement that the victim had been in your facility prior to his/her death? If less than two days,
indicate in hours.)
_____ Hours
_____ Days
_____ Months
_____ Years
10) Did the victim have a history of Substance Abuse either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
11) If the victim had a history of substance abuse, briefly Describe Substance Abuse. _______________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
12) Did the victim have a history of Medical Problems either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
13) If the victim had a history of medical problems, briefly Describe Medical Problems. _____________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
14) Did the victim have a history of Emotional Abuse either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
15) If the victim had a history of emotional abuse, briefly Describe Emotional Abuse. _______________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
16) Did the victim have a history of Physical Abuse either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
17) If the victim had a history of physical abuse, briefly Describe Physical Abuse. _______________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
50
-3-
18) Did the victim have a history of Sexual Abuse either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
19) If the victim had a history of sexual abuse, briefly Describe Sexual Abuse. _______________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
20) Did the victim have a history of mental Illness either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
21) If the victim had a history of mental illness, briefly Describe mental Illness. _______________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
22) Did the victim have a history of taking Psychotropic Medication either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
23) If the victim had a history of taking psychotropic medication, briefly Describe Psychotropic Medication (e.g., date, type, does, and
frequency). ______________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
24) Did the victim have a history of Suicidal behavior either in the facility and/or in the community?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
25) If the victim had a history of suicidal behavior, briefly Describe Suicidal behavior. ______________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
26) Did the victim have a history of Room Confinement (e.g., isolation, segregation, time-out, quiet room, etc., see definitions on page 7)
while in the facility?
(1) _____ Yes
(2) _____ No
(9) _____ Unknown
27) If the victim had a history of room confinement, briefly Describe Types and Circumstances of Room Confinement. ___
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
51
-4PART B: SUICIDE INCIDENT CHARACTERISTICS

28) What was the Date and Time of the victims suicide?
Date: ___/____/199__
Time (found): __________ a.m. __________ p.m.
29) What was the Method of suicide and the Instrument used?
Method
Instrument
(1) _____ Hanging (from _________)

(2) _____ Overdose
(3) _____ Cutting
(4) _____ Shooting
(5) _____ Jumping
(6) _____ Ingestion of Foreign Object(s)
(8) _____ Other
(01) _____ Shoelace

(08) _____ Knife
(02) _____ Belt
(09) _____ Glass
(03) _____ Other Clothing
(10) _____ Drugs
(04) _____ Bedding
Specify: _________
(05) _____ Towel
(06) _____ Razor
(07) _____ Other (Specify __________)
30) At the time of the suicide, was the victim Under the Influence of:
(1) _____ Drugs
(4) _____ Neither Drugs or Alcohol
(2) _____ Alcohol (3) _____ Drugs and Alcohol
31) At the time of the suicide, was the victim assigned to a Single or Multiple Occupancy room?
(1) _____ Single
(2) _____ Multiple
32) What was the Time Span between the suicide and finding the victim?
(1) _____ Less Than 15 Minutes
(2) _____ Between 15 and 30 Minutes
(3) _____ Between 30 and 60 Minutes
(4) _____ Between 1 and 3 Hours

(5) _____ Greater Than 3 Hours
33) Was the victim under any type of Room Confinement (e.g., isolation, segregation, time-out, quiet room, etc.) at the time of the
suicide?
(1) _____ Yes
(2) _____ No
34) If the victim was under room confinement at the time of suicide, briefly Describe Type and Circumstances of Room confinement.
_____________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
35) Was the victim under Suicide Watch (see definitions on page 7) at the time of the suicide?
(1) _____ Yes
(2) _____ No
52
-5-
36) If the victim was under suicide watch at the time of the suicide, what was the Frequency of Staff Observation (excluding any closed
circuit television monitoring)?
(1) _____ Continuous
(2) _____ Every 5 Minutes

(8) _____ Other (Specify __________)
37) Was the victim ever Assessed by a Qualified Mental Health Professional (see definitions on page 7) prior to the suicide?
(1) _____ Yes
(2) _____ No
38) If the victim was assessed, when was the Last Contact by a Qualified Mental Health Professional prior to the suicide? (If less than two
days, indicate in hours.)
_____ Hours
_____ Days
_____ Months
_____ Years
39) Was a Mortality Review (see definitions on page 7) conducted following the suicide?
(1) _____ Yes
(2) _____ No
40) If a mortality review was conducted, did the process offer any Possible Precipitating Factors (i.e., circumstances which may have
caused the victim to commit suicide)? If yes, describe: ______________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
41) If a mortality review was conducted, did the process offer any Recommendations to Prevent Future Suicides? If yes, describe: _____
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
53
-6-
PART C: FACILITY CHARACTERISTICS
42) The Facility (see definitions on page 7) is best described as a:

_____ DETENTION CENTER
_____ TRAINING SCHOOL/SECURE FACILITY
_____ RECEPTION/DIAGNOSTIC CENTER
_____ RANCH, CAMP or FARM
_____ OTHER (Explain): _______________________________________________________________
43) The facility is Administered by:
(1) _____ State
(2) _____ County
(3) _____ Municipality
(4) _____ Private Organization

(8) _____ Other (Specify __________)
44) At the time of the suicide, what was the rated Capacity and Population of the facility?
(1) _____ Capacity (2) _____ Population
45) At the time of the suicide, did the facility have a Written Suicide Prevention Policy?
(1) _____ Yes
(2) _____ No
46) At the time of the suicide, did the facility have an Intake Screening process to Identify suicide Risk?
(1) _____ Yes
(2) _____ No
47) At the time of the suicide, had all direct-care facility staff received Suicide Prevention Training?
(1) _____ Yes
(2) _____ No
48) If all direct-care facility staff had received suicide prevention training, what was the Frequency and Duration of the Suicide Prevention
Training at the time of the suicide?
Frequency
Duration
(1) _____ Yearly

(6) _____ Other (Specify __________)
(01) _____ Hours (Specify Number)

(02) _____ Minutes (Specify Number)
49) At the time of the suicide, had all direct-care facility staff received Certification on Cardiopulmonary Resuscitation?
(1) _____ Yes
(2) _____ No
50) At the time of the suicide, did the facility have a Suicide Watch process (excluding any closed circuit television monitoring)?
(1) _____ Yes
(2) _____ No
51) If the facility had a suicide watch process at the time of the suicide, what was the Frequency Level(s) of Staff Observation? (Check all
that apply.)
(1) _____ Continuous

(8) _____ Other (Specify __________)
52) At the time of the suicide, did the facility have a Housing process by which a suicidal resident would be assigned to a safe and
protrusion-free room?
(1) _____ Yes
(2) _____ No
54
-7THE FOLLOWING WILL BE USED FOR INTERNAL PURPOSES ONLY:

Completed by (name/title): _____________________________________________________________________
Name of Facility: ____________________________________________________________________________
Address (street): ___________________________________________________________________________________
City: _________________________________ State: ________________________ Zip code: ________

Telephone: __________________________________________________________________________________
Date Completed: _____________________________________________________________________________
Would you like to receive a copy of the survey findings?
(1) _____ Yes
(2) _____ No
DEFINITIONS
ROOM CONFINEMENT: Behavioral sanction imposed on youth that restricts movement for varying amounts of time. Includes, but is not
limited to, isolation, segregation, time-out, quiet room.
SUICIDE WATCH: The level(s) of staff observation given to youth identified as being at risk of suicide. Excludes closed circuit television
or any other non-staff monitoring.
QUALIFIED MENTAL HEALTH PROFESSIONAL: An individual by virtue of their education, credentials, and experience that is
permitted by law to evaluate and care for the mental health needs of patients. May include, but is not limited to, a psychiatrist,
psychologies, clinical social worker, and psychiatric nurse.
MORTALITY REVIEW: An interdisciplinary committee process that examines the events surrounding the d4eath to determine if the
incident was preventable. the review process may include recommendations aimed at reducing the opportunity for future deaths.
DETENTION CENTER/HOME: A short-term facility that provides custody in a physically restricting environment pending adjudication
or, following, adjudication, pending disposition, placement, or transfer.
TRAINING SCHOOL/SECURE FACILITY: A long-term facility for adjudicated youth typically under strict physical/staff controls.
RECEPTION/DIAGNOSTIC CENTER: A short-term facility that screens youth committed by courts and assigns them to appropriate
facilities.
RANCH, CAMP, or FARM: A long-term residential facility for youth whose behavior does not require the strict confinement of a training
school, often allowing them greater contact with the community. Includes residential treatment facility and boot camp.
THANK YOU FOR YOUR COOPERATION

Please return this completed questionnaire in the enclosed business reply envelope within 30 days to:
NCIA
40 Lantern Lane
Mansfield, MA 02048
or fax to
508/337-3083
55

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ADAMS v.

tiveness claim, and the claim is indeed raised

Background: Defendant was convicted in

er, J., of child molestation and aggravated

1. Criminal Law O569

707 SOUTH EASTERN REPORTER, 2d SERIES

7. Indictment and Information O176

defendants crime, a court must begin by

Rafe Banks, III, Daisy Drury Weeks,

Lee Darragh, District Attorney, Theodore

707 SOUTH EASTERN REPORTER, 2d SERIES

verdict, which the trial court orally denied.

A person shall not be considered or found

[3, 4] Indeed, OCGA 1631 sets forth

[2] OCGA 1631 does not provide

defendant unless the states evidence

Neither an allegation nor proof of Adams

707 SOUTH EASTERN REPORTER, 2d SERIES

based on the states alleged failure to

evidence of criminal acts is beyond the

remain behind bars for life. Graham v.

(A) sentence which is not otherwise cruel

707 SOUTH EASTERN REPORTER, 2d SERIES

By logical extension, the majoritys rationale

26701 of the 1968 Criminal Code. I

ty in August 2005, it would have had to occur

State in violation of Roper, supra, to use the

A review of the record in this casefrom the

duction orders to the youth detention center

This assumes that the victim was just shy of her

The victim complained on March 9, 2008 about

This page left intentionally blank and unnumbered.

122 SUPREME COURT REPORTER

regulatory authority of a State does not

S 304Daryl Renard ATKINS, Petitioner,

536 U.S. 451

is not graduated and proportioned to offense. U.S.C.A. Const.Amend. 8.

2. Sentencing and Punishment O1435

Sentencing and Punishment O1480

Punishment is excessive, and therefore prohibited by Eighth Amendment, if it

Petitioner Atkins was convicted of

* The syllabus constitutes no part of the opinion

1. Sentencing and Punishment O1482

536 U.S. 305

122 SUPREME COURT REPORTER

536 U.S. 305

judgment, and control of their impulses,

Those mentally retarded persons who

Jones and Atkins both testified in the

degree murder in exchange for his testimony

Justice STEVENS delivered the opinion

536 U.S. 309

sufficient to establish Atkins guilt.2 At

In the penalty phase, the defense relied

Highly damaging to the credibility of Atkins

The American Association on Mental Retardation (AAMR) defines mental retardation as

The doctor interviewed Atkins, members of

The jury sentenced Atkins to death, but

Dr. Nelson administered the Wechsler Adult

122 SUPREME COURT REPORTER

ond sentencing hearing because the trial

Dr. Samenows testimony was based upon

536 U.S. 309