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On the morning of Oct. 13, the U.S. Supreme Court will hear arguments in Roper v. Simmons, a case about the constitutionality of executing individuals who commit crimes as teenagers. The Court should abolish this ill-considered practice. Because of their diminished capacity, juvenile defendants � like mentally retarded defendants � cannot fully exercise their Fifth Amendment, Sixth Amendment, and 14th Amendment rights in capital proceedings, and thus it should be unconstitutional to put them to death. EVOLVING STANDARDS Two years ago, the Supreme Court took a second, hard look at the execution of mentally retarded defendants. In a comprehensive and well-articulated opinion in Atkins v. Virginia, the Court reversed its 1989 ruling in Penry v. Lynaugh. In Atkins, the Court held that the execution of mentally retarded persons violated the Eighth Amendment stricture against “cruel and unusual” punishments. The Court found that in the 13 years since it had decided Penry, a “national consensus” had formed against executing the mentally retarded. Simmons came to the U.S. Supreme Court on certiorari from the Missouri Supreme Court. Missouri’s highest court, applying the philosophy and decision in Atkins, found that a national consensus against the juvenile death penalty had developed and concluded that offenders under 18 should not be executed. The state of Missouri appealed that ruling to the U.S. Supreme Court. In Simmons, the Supreme Court will decide whether evolving standards of decency have progressed to the point in this country where we no longer find it acceptable to execute those whose crimes were committed before they reached the age of 18. Fifteen years ago, the Supreme Court was asked to examine the same issue that is before it today. In that case, Stanford v. Kentucky, the Court held that, notwithstanding an Eighth Amendment ban on the execution of offenders 15 years old or younger, 16- and 17-year-old offenders were not similarly protected and could be executed. DIFFERENT FROM ADULTS Juveniles have long been treated differently from adults in our nation’s legal systems. American civil and criminal law recognizes a need to protect those under 18 as well as to restrict their behavior. As the Supreme Court observed in Thompson v. Oklahoma (1988), “It would be ironic if these assumptions that we so readily make about children as a class � about their inherent difference from adults in their capacity as agents, as choosers, as shapers of their own lives � were suddenly unavailable in determining whether it is cruel and unusual to treat children the same as adults for purposes of inflicting capital punishment.” It is not just common sense and centuries of human parenting experience � raising, caring for, and preparing children for life � that tells us that juveniles differ significantly from adults in many ways. In Simmons, neurologists, psychiatrists, psychologists, and other knowledgeable experts have submitted amicus briefs detailing the developmental differences between juveniles and adults. It turns out that those qualities that we have always anecdotally associated with adolescence � impulsivity, bad judgment, careening emotions, and poor communication skills � are the result of real physical differences in juvenile brains. DIMINISHED CAPACITY In the 1989 Atkins case, the Supreme Court noted that the mentally retarded have developmental limitations that prevent them from fully exercising their constitutional rights and from receiving the heightened constitutional protections that are required in a capital trial. Juveniles share many of the same limitations that severely erode, if not completely remove, the important constitutional rights guaranteed by the Fifth, Sixth, and 14th amendments that are available to adults. The diminished capacity of juveniles materially impairs their ability to communicate with and assist their counsel, as well as their ability to make crucial trial decisions � such as whether to ask for a jury trial or whether to request a lawyer before signing the prosecutor’s proposed confession. As academic research has found, many adolescent defendants, because of their relationship with authority and their developmental process, either do not perceive their attorney as being on their side or fail to give their attorney information about the charges against them out of mistrust. Juveniles’ immature communication skills almost always interfere with and reduce their ability to assist counsel. Too many juveniles have neither the experience nor the judgment to communicate with and inspire the loyalty and the zeal of overworked, undercompensated, court-appointed defense counsel. Juveniles are far more likely to falsely confess than adults, as academic research has found. Particularly at risk are those most likely to be a capital defendant: the indigent, school dropouts, and those with no family to turn to. For example, as Steven Drizin and Richard Leo have noted in a 2004 article in the North Carolina Law Review, “one of the most common reasons cited by teenage false confessors is the belief that by confessing, they would be able to go home.” The Court in Atkins noted that the mentally retarded “are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.” The same can be said of juveniles. Juvenile defendants in capital trials face a jury composed of individuals who are most certainly not their peers. Adults often fear juvenile offenders merely because they are juveniles, as the Coalition for Juvenile Justice has reported. Juveniles also lack the same opportunities that adults have to show mitigating factors at trial. Their lack of fully developed communication and reasoning skills often make it difficult for them to understand and identify, much less articulate, such factors for their attorneys. The argument is often made that a defendant’s youth itself can and should be argued as a mitigating factor. In Simmons, however, the prosecutor used Christopher Simmons’ age to argue the exact opposite. The prosecutor argued for the death penalty because the defendant was a juvenile. He said to the jury: “Think about age. Seventeen years old. Isn’t that scary? Doesn’t that scare you? Mitigating? Quite the contrary, I submit. Quite the contrary.” As the Missouri Supreme Court noted, juveniles also “have had less time to develop ties to the community, less time to perform mitigating good works, and less time to develop a stable work history, than is true of adult offenders.” Thus, juveniles also face the risk that the death penalty will be imposed in spite of factors that may call for a less-severe penalty. JUSTICE AT RISK The constitutional dangers a juvenile charged with capital crimes faces mirror those faced by a mentally retarded defendant. Indeed, the ways in which juveniles’ developmental limitations affect their access to proper procedural protections exactly tracks the erosion of rights of the mentally retarded that the Court outlined in Atkins. Both juveniles and the mentally retarded have deficiencies in their reasoning faculties, in their judgment faculties, and in their ability to control impulses. These characteristics of juveniles, like the characteristics of the mentally retarded, “undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards,” to use the words of the Atkins Court. These special characteristics of juveniles devastate the protections that the Constitution should provide. The death penalty is unconstitutional without elevated procedural protections. As applied to juveniles, this punishment violates the Fifth Amendment, Sixth Amendment, and 14th Amendment procedural rights that are guaranteed to adults. Joseph D. Tydings, a former U.S. senator, is a partner at the D.C. office of Dickstein Shapiro Morin & Oshinsky. He represents the Coalition for Juvenile Justice, an amicus curiae supporting Christopher Simmons before the Supreme Court.

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