Legal News
Brain Studies Could Affect Death Penalty Case Outcome
Psychiatric News
Volume 39 Number 24 page 10-34

The U.S. Supreme Court will decide this term whether capital punishment of offenders who committed their crimes at age 16 or 17 is constitutional in the case Donald Roper v. Christopher Simmons.

Last year the Missouri Supreme Court ruled in the case that executing a person who had committed a murder when he was 17 is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

The question facing the Supreme Court now is whether such executions are still considered cruel and unusual punishment in light of evolving societal standards, according to attorney Seth Waxman, who represented Simmons during oral arguments before the Supreme Court in October.

Another issue that bears on the case has been raised by APA, the American Academy of Child and Adolescent Psychiatry (AACAP), and other advocacy groups in light of science indicating that the adolescent brain is not as mature as that of adults and may not reach full maturity until the early 20s.

Simmons was 17 years old when he was arrested for a brutal murder in Missouri. He was convicted and sentenced to death. Missouri is one of 19 states where the death sentence is legal for 16- and 17-year-olds (Psychiatric News, August 6).

Waxman argued that since the Supreme Court decided 15 years ago in Stanford v. Kentucky that 16-year-olds could be executed, "a consensus has evolved, and new scientific evidence has emerged, changing the constitutional calculus for much the same reasons the court found in [the] Atkins [decision], regarding execution of offenders with mental retardation," according to a court transcript.

The majority of the justices recognized age as a mitigating factor in the Stanford case, but stated in their decision that "the national climate didn't rule out the death penalty simply because of the age of the offender," according to the June 23 "On the Docket" by Medill News Service at Northwestern University.

Missouri Attorney General Joseph Layton argued on behalf of Roper, superintendent of a state prison, and other Missouri officials, that the Supreme Court should stand by its decision in Stanford," leaving in the hands of legislators [rather than courts] a determination as to the precise minimum age for capital punishment."


The high court decided in Thompson v. Oklahoma in 1988 that adolescents who commit capital crimes before age 16 should not be subject to the death penalty because they "exhibit disabilities in areas of reasoning, judgment, and control of their impulses."

Atkins v. Virginia, which barred executions of those with mental retardation, was the first Supreme Court capital punishment case in which" scientific research was raised and considered as an indicator of evolving societal standards of decency," defense attorney Stephen Harper told Psychiatric News. He represents juveniles facing the death penalty and coordinates the Juvenile Death Penalty Initiative (JDPI) in Miami. The JDPI works to eliminate the juvenile death penalty, but did not submit an amicus brief in the Simmons case.

"In 2002 a consensus emerged among professionals with expertise in mental retardation that people with limited mental abilities to reason or make good judgments should not be held to the same level of legal responsibility as normal, healthy adults who knowingly commit crimes," Harper commented.

Public support for capital punishment in general had also declined from 75 percent in 1994 to 62 percent in 2001, according to the December 2001 report" Public Opinion on the Death Penalty for Youths" by Tom Smith of the National Opinion Research Center (NORC) at the University of Chicago.

The Supreme Court decided in Atkins by a 5-4 vote that Virginia law violated the Eighth Amendment ban on cruel and unusual punishment by allowing mentally retarded offenders to be put to death.

Shortly after that ruling, the Missouri Supreme Court, which had stayed Simmons' execution, reviewed his case and decided that the Missouri law was unconstitutional based on the Atkins ruling. Simmons was resentenced to life in prison without the possibility of parole (Psychiatric News, July19, 2002).


APA adopted a position statement in 2001 opposing the juvenile death penalty and joined a friend-of-the-court brief filed in July on Simmons' behalf. The brief was written by the American Society for Adolescent Psychiatry and contains input from APA and other organizations, including the AMA, AACAP, American Academy of Psychiatry and the Law, and National Mental Health Association (Psychiatric News, August 6).

Jeffrey Metzner, M.D., chair of APA's Committee on Judicial Action, told Psychiatric News that the brief "focuses on what science can tell us about the neurological, physiological, psychological, and emotional development of older adolescents from the perspective of scientists and medical professionals."

APA and the other groups argued that brain-imaging studies show that, compared with adults, adolescents are less capable of good judgment, decision making, and impulse control.

"The fact that leading medical groups spoke with one unified voice on this narrow legal issue was because reduced adolescent culpability has become more a matter of science than morality," Harper said.

The brief cites brain-imaging studies of mentally healthy adolescents by researchers at the National Institute of Mental Health (NIMH) including research by Jay Giedd, M.D., a child psychiatrist and chief of the brain-imaging unit at NIMH.

At AACAP's annual meeting in October, Giedd presented the results of a longitudinal brain-imaging study he and his colleagues conducted. The study was published in the October 1999 Nature Neuroscience.

He and his colleagues discovered a second growth spurt in the prefrontal cortex that occurs right before puberty. The prefrontal area of the cortex controls planning, working memory, and organization and modulates mood.

The first growth spurt occurs at about age 3. New brain cells and synapses are overproduced and then pruned back.

"The trimming of excess growth consolidates learning and results in fewer but faster brain cell connections," Giedd said.

Another important discovery by Giedd and other researchers is that the prefrontal cortex is the last area of the brain to mature. However, exactly when full maturity is reached in the brain varies from age 18 to 25 depending on the study.

Four justices made clear in a dissenting opinion in Stanford v. Kentucky that they opposed the juvenile death penalty, Harper said. The four justices are David Souter, Ruth Ginsburg, Stephen Breyer, and John Paul Stevens.

"We also know that three conservative justices, William Rehnquist, Antonin Scalia, and Clarence Thomas, support allowing states to set the minimum age for the juvenile death penalty," he added. That leaves two undecided justices in Simmons, Sandra Day O'Connor and Anthony Kennedy, whose votes will determine the outcome of the appeal.

The transcript of the oral arguments is posted online at<www.supremecourtus.gov/oral_arguments/argument_transcripts/03-633.pdf>. Information on the juvenile death penalty is posted at<www.abanet.org/crimjust/juvjus/juvdp.html>.

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