An assignment that asked students to evaluate a Supreme Court case and to dispute the decision with logical argumentation.

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Geneva Lewis/PHIL 453: Topics in Philosophy of Law/Final Paper/ November 17, 2013
How do we mete out punishment for crimes? Who is responsible for their crimes? At what age
does a person become culpable for their crime and is able to face the consequences of their
actions? These are the fundamental questions that the Supreme Court explored when they
decided Roper v. Simmons (2005). That the case was granted a writ of certiorari indicated that
the Court had decided it was time to mandate a federal policy regarding the death penalty applied
to juveniles in the criminal justice system. The death penalty was impermissible nationwide
from the age of 15 and under (Thompson v. Oklahoma, 1988). Foundational constitutional law,
particularly the 8th amendment, and the 14th amendment’s doctrine of incorporation had been
successfully argued in Thompson. The Roper case would ultimately decide whether states or the
federal government would have the final word on sentencing and legislating criminal codes of
punishment related to juveniles 16-17 years old who are charged with capital crimes and are
convicted by a jury.
Statement of Facts
The petitioner in this case was Donald R. Roper, superintendent of the Potosi Correctional
Center. The Respondent was an individual, Christopher Simmons, convicted and sentenced
to the capital crime of murder in the state of Missouri. Simmons committed the crime, which he
was convicted of at 17 years and 3 months and was convicted and sentenced to death after the
age of 18. His right to appeal was granted in Missouri at the state level. His case was heard and
the Missouri Supreme Court granted petitioner Simmons a life sentence in lieu of the death
penalty he was originally sentenced to. Simmons’ counsel argued that recent developments at the
Supreme Court level, in particular Atkins v. Virginia (2002) which barred the execution of
mentally ill individuals through a successfully argued violation against the 8th amendment (cruel

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and unusual punishment doctrine) justified re-examination of Simmons’ sentence for a crime
committed when he was a juvenile under age 18. Upon this decision, Donald L. Roper,
superintendent of the Potosi Correctional Center, where Simmons was incarcerated, petitioned
the United States Supreme Court for a writ of certiorari seeking to overturn the Missouri court
decision that reversed Simmons’ death penalty. In the writ of certiorari, it was stated that
Simmons planned and committed a capital murder. A capital murder is a crime in which can
result in a capital sentence, also known as the death penalty. Capital crime of murder is first-
degree murder with aggravating factors in its commission, such as rape, robbery, carjacking,
kidnapping, etc. The death penalty at the time of this ruling was permitted in 20 states for those
individuals between the ages of 16-17; hence, it was banned in 30 states. According to Missouri
revised statutes codified in 1999, a minimum age of sixteen was set as the threshold for
execution. At the time the crime was commissioned, Simmons was 17 years and three months, a
junior in high school.
Simmons and two other friends met at 2 AM the morning of the crime. He was the instigator of a
proposed burglary and murder. One friend opted out of the murder/burglary plan at the early
hour. After reaching through an open window, and unlocking the back door of victim Shirley
Crook’s home, the hall light was turned on by the perpetrators. Shirley Crook was awakened and
saw Simmons’ face in her bedroom. Simmons recognized her from a previous car accident that
they were both a part of. Knowing that Mrs. Crook could identify him, Simmons later testified
this solidified his plan to murder the burglary victim. Mrs. Crook, a 46-year old homemaker was
alone in her home while her husband was away on a weekend hunting trip. Awoken from sleep,
she was bound with duct tape and her eyes and mouth were covered with duct tape. She was

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placed in her own minivan, where she was driven to a nearby state park. Upon arriving at the
park, her head was covered with a towel, her bindings were solidified, and on a railroad trestle
above the Meramec River, Mrs. Crook’s bindings were further reinforced with electrical wire.
Additionally, her entire face was covered in additional duct tape and she was thus thrown off the
trestle, drowning to her death. Crook’s body was recovered by fishermen, her husband alerted
police to his wife’s disappearance, and Simmons was brought in for questioning, possibly related
to his bragging among friends of the murder. Simmons’ crime, to which he confessed, could be
categorized as first-degree murder with the aggravating conditions of burglary, kidnapping, and
torture.
Procedural History
Christopher Simmons was charged with first degree murder, burglary, kidnapping, and stealing.
At trial in the state of Missouri, his two-hour confession and videotaped re-enactment of the
crime at the scene was submitted as evidence. Simmons was duly convicted by a jury who
agreed that the three elements presented by prosecution had been met to meet a capital crime of
murder: the crime was committed “for the purpose of receiving money …for the purpose of
avoiding… arrest, and involved depravity of the mind and was outrageously and wantonly vile,
horrible, or inhuman.” The death penalty was a legal sentencing option for the crime, voted on
by the jury, and the trial judge duly imposed the sentence. Simmons obtained new counsel which
filed for appeal, claiming ineffective counsel in the previous trial. It was stated that this
ineffective representation failed to present mitigating factors at the trial, including Simmons’
abusive home life, concomitant alcohol and drug abuse, and lack of maturity. The trial court
denied the claim of 6th amendment constitutional violation. The Missouri Supreme Court
affirmed the trial court’s decision in State v. Simmons (1997). Federal courts then denied a writ

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of habeas corpus appeal, an 8th amendment constitutional claim against unlawful detention at the
state level. It appeared as though Simmons’ appeals had reached a natural end. However, with
the Supreme Court decision in 2002, Atkins v. Virgina, mentioned earlier, a new angle of
argumentation appeared. The Court was amenable to arguments of violation of the 8th
amendments “cruel and unusual punishment” in this case and thus banned the execution of
mentally retarded inmates who had received a death penalty sentence. Borrowing the argument
that mentally retarded person could not be held culpable for their crime due to their deficient
mental state, Simmons’ attorneys successfully petitioned the Missouri Supreme Court. This time
their appeal was met with success, as it was ruled that the imposition of the death penalty on a
juvenile aged 16-17 at the time of the crime was, in fact cruel and unusual punishment due to the
lack of maturity and full mental capacity of a 16-17 year –old. Simmons death penalty was
overturned and changed to a life sentence. At this time the writ of certiorari was submitted and
granted by the U.S. Supreme Court by petitioner Roper in an effort to implement the earlier
sentence of death.
The Question Under Consideration
The essential question in this case was whether a state Supreme Court could declare a state
punishment formerly legal, as unconstitutional based on an interpretation of a higher court’s
ruling. In the Missouri Supreme Court’s decision, a stay of execution was granted to petitioner
Simmons by stating that evolving standards of decency and public opinion had turned against
execution of 16-17 year olds, and that the Missouri statute of death penalty for those 16-17
convicted of capital crimes was unconstitutional by implication via Roper and a violation of the
8th amendment. The issue in this case before the court was whether an individual aged 16-17,
convicted of a capital crime, could be sentenced to death as prescribed by Missouri revised

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statutes of codified criminal law, or if the state could declare such statutes unconstitutional in a
federal context, thus applying the ruling to state criminal sentencing and convictions. The court
agreed to hear the case and definitively rule.
Supreme Court Decision and Rationale
Roper v. Simmons was an issue of federal and state’s rights, and judicial lawmaking- factions
often at odds since America’s founding as an independent nation. By using the argument of
constitutional violation of the 8th amendment’s text, “…nor cruel and unusual punishments
inflicted,” and in the context of the 14th amendments doctrine of incorporation section, “no states
shall make or enforce any laws which shall abridge the privileges and immunities of the citizens
of the United Sates; nor shall any State deprive any person of life, liberty, or property, without
due process of law,” the counsel for Simmons would argue at the federal level that the
constitutional violation threshold had been met, and that the Missouri State Supreme court
decision to stay Simmons’ execution should be upheld. Petitioner Roper’s petition for writ of
certiorari argued that the Missouri Supreme Court’s interpretation of the 8th amendment in the
Simmons case was flawed. Justice Kennedy, writing the majority opinion which upheld the
lower court’s ruling, presented a series of arguments that supported barring the death penalty for
perpetrators aged 16-17. This decision thus created precedent for abolishing nationwide
executions for juveniles aged 16-17. The reasoning refers to the two primary modes of
punishment for criminal acts: retribution and deterrence. Kennedy refers to consensus: “the
rejection of the juvenile death penalty in 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 practice-provide
sufficient evidence that today our society views juveniles…as “categorically less culpable than
the average criminal.”

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Kennedy reiterates the elements of capital crimes as limited to offenders who commit a “narrow
category of the most serious crimes,” and whose culpability makes them “the most deserving of
execution. Kennedy also cites international law as opposing juvenile executions. Culpability in
juveniles is explored further with Kennedy stating three differences between juveniles under 18
and adults: lack of maturity and responsibility, susceptibility of juveniles to negative influences,
including peer pressure, and that the character of a juvenile is not as well formed as that of an
adult. Kennedy posits that there is greater chance of reform for a juvenile offender, and a lower
threshold of culpability, hence the lack of appropriateness of retributive justice via the death
penalty for this population. Regarding deterrence, another crime-control model, Kennedy states
that the Court’s reasoning in Thompson v. Oklahoma did not find deterrence a meaningful
outcome with juvenile death sentences because offenders under 16 have a low likelihood of
performing cost-benefit analysis of the death penalty related to criminal activity. He appears to
extend this reasoning to Roper.
A Critical Analysis of the Rationale
Deterrence and Retribution are the two arms of substantive, corrective justice. Substantive justice
asks the questions of why decisions should be made in the context of criminal justice, not the
how of in procedural due-process justice model. Retributive and Utilitarian (Deterrence) justice
models both operate under the context of punishment for criminal acts, but while deterrence
operates under the principles of general or specific deterrence, retributive justice functions under
the specific criminal act in question. By focusing its gaze on the impact on the victim, and the
appropriate restoration of justice for the crime in compensation for the offense underlies this
principle. Since ancient times death has been deemed an appropriate punishment for murder. In
Latin it is called Lex Talionis, also known as “an eye for an eye.” The majority’s argument which

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seeks to extend the reasoning in Thompson v. Oklahoma to those 16-17 in which it is claimed
that perpetrators of a younger age do not engage in a cost-benefit analysis of their crimes, thus
rendering retribution of limited value in this population. This reasoning has an equally strong
argument against: namely, Christopher Simmons’ trial had testimony from a witness stating he
urged his friends to participate in the crime because they were all juveniles and wouldn’t have to
face the consequences of their acts. In terms of arguing national consensus against the juvenile
death penalty by a numeric tally of no juvenile death penalty/juvenile death penalty states (30-
20) , it could be argued that consensus should not dictate policy. Majority thinking is just that:
the majority. It is not an indication of rightness or wrongness, and as history shows, has mutable
nature and has also been referred to as the “Tyranny of the Majority.” Additionally, for
legislators and judiciary to respond to public opinion and sentiment could lead to untoward
consequences. As some have stated, if consensus and public opinion shifted in time to demand
executions for more crimes than are sanctioned today, could that reasoning indicate a change of
course in the future? Moreover, to use the rationale of Atkins to extend to Roper is a flawed basis
of unequal comparison. To be mentally retarded (now called intellectual disability under current
DSM-5 diagnostic standards) one criteria of numeric scoring is an IQ of 70 or below, “two
standard deviations below normal.” The standard medical reference for physicians, The Merck
Manual, states that “mental retardation is characterized by significantly sub-average intellectual
functioning combined with limitations of greater than two of the following: communication, self-
direction, social skills, self-care, use of community resources, and maintenance of personal
safety.” It is implausible to compare the cognitive impairment (hence, culpability) of an
intellectually disabled individual’s functioning with that of a teenager. Current research
exploring risk-taking and executive planning skills of teenagers is in its infancy. Using such data

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to support or refute theories about brain development are premature at this time. As renowned
brain surgeon and researcher Dr. Keith Black says: “The Holy Grail in brain research is to
understand the interface between the two (brain and mind). How does the three-pound brain,
with its billions of nerve cells, convert the chemical and electrical impulses that it registers into
thought and emotion? We know that even when you look at something that is less complex than
the human brain- the brain of a dog, for example- we still cannot answer the question” (Black,
p31). Teenagers are transitioning to adult autonomy and a higher rate of risk-taking as they
navigate social and intellectual changes, but to say that a 16-year old, who can legally operate a
2-ton piece of equipment known as an automobile, cannot stop an irresistible impulse to kidnap,
torture, murder, and rob and lacks culpability is difficult to come to terms with. To bow to
international law and opinion is equally flawed. International law does not control our executive,
legislative or judicial branch, rather, constitutional law is our foundational basis for governance.
Returning to the Constitution, “cruel and unusual,” is a sanction that is not defined specifically,
which allows for thoughtful reexamination of what it defines. Kennedy focuses in the majority
opinion not on such specifics, but more on the states’ abridgement by implementing the death
penalty on 16-17 year olds as an extinguishing of the juvenile offender’s “potential to attain a
mature understanding of his humanity.” Our current day rules to implement the death penalty
with years from sentencing to execution, with appeals, have a strong disconnect between original
goals of the sentence regarding retribution and/or deterrence. Yet, states still have the right to
determine if the death penalty is allowed or forbidden in their sentencing codes by will of the
legislature and hence, the people, even with onerous, costly restrictions on the methods and
means of such executions. What could definitively be defined as cruel and unusual punishment
is to torture and kidnap a defenseless 46-year old woman, who went to sleep as though it was any

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other night in a small town in Missouri, only to awake and find herself in the clutches of
merciless killers. We can never know what the final hours of Shirley Crook’s life were like, nor
what imagined and real terrors she faced. Now that no minor can be executed under the age of
18, I ask the reader how they would feel if a 17-year old, murdered your mother or sister. Would
you be content knowing that his/her culpability was limited because of the inexperience of
youth? That their chance of reform was higher? That international law opposed death penalty for
juveniles? Or that the killer’s character was not well formed, was susceptible to peer pressure,
and was not mature? The slow and relentless goal of many in the U.S. legal and criminal justice
arena is to legislate the death penalty, Lex Talionis, out of existence with the use of social
science theories which borrow the medical and scientific models, methods, and tools of science,
but lack the quantifiable results of a scientifically-controlled and repeatable experiments. I
propose that states should still, through legislative action and the will of the people, have the
ability to implement capital crimes sentencing for those who have the capability of knowing the
difference between right and wrong and not arbitrarily extend the “line” as Kennedy says, to 18,
claiming it is the true line between adult and childhood. I propose that historically and to the
current day, the juvenile justice system exists for those of a tender age, for reform and re-
direction, and that 15 is an appropriate age for such actions before any real adult responsibilities
and rights void the juvenile’s status. When someone aged 16-17 is capable of planning and
executing a crime that is premeditated and with express intent and aggravated conditions (felony
first degree murder), can mentally determine right from wrong, and has limited adult
responsibilities and rights (i.e, driving an automobile) it is reasonable to remand him/her to the
adult system and face adult sentencing at the state’s discretion within applicable statutory
sentencing guidelines, whether that includes or excludes capital punishment.

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References
Beers, Mark, ed. The Merck Manual of Diagnosis and Therapy, 18th edition. Merck and Co.
Publishers, New York. 2006.
Black, Keith. Brain Surgeon. Wellness Central; Hachette Publishers, New York. 2009.