NCJ Number
131562
Journal
Notre Dame Journal of Law, Ethics and Public Policy Volume: 5 Issue: 2 Dated: (1991) Pages: 467-501
Date Published
1991
Length
35 pages
Annotation
This analysis of legal doctrines related to capital punishment for juveniles concludes that even juvenile murderers should be spared the death penalty, because their youth prevents them from having the capacity for full moral culpability.
Abstract
United States Supreme Court Justice Antonin Scalia has expressed the emerging conservative challenge of the Court's traditional interpretation of the eighth amendment's clause prohibiting cruel and unusual punishment. Scalia and others have attacked the traditional principle of proportionality under which punishments that are grossly out of proportion to the severity of an offender's crime are prohibited. Justice Scalia's dissent in Thompson v. Oklahoma in 1988 and his subsequent opinions in Stanford v. Kentucky and Penry v. Lynaugh put forth the conservative view. This view is likely to become the majority soon, although it should be rethought. Among its problems are its unjustified repudiation of longstanding principles of eighth amendment analysis, its incoherent rendition of a substantial and clearly defensible body of eighth amendment law, and the possibility that it may eventually undermine the Supreme Court's crucial capacity to appeal to people's better natures and aspirations rather than the pressures of the moment. Footnotes