In Roper v Simmons, the U.S. Supreme Court was confronted with the issue of whether there was a basis to find that 16 and 17 year olds as a group should be excluded from eligibility for the death penalty. Under legal precedent, in addition to assessing public opinion, the Court had to look at whether the death penalty for this group could be said to serve the purposes of deterrence and retribution (i.e. is the punishment proportional to the culpability of the defendant). From a legal perspective, the death penalty is reserved for the "worst of the worst" of criminals - those who commit heinous crimes and "whose extreme culpability makes them the most deserving of execution." The Court had to evaluate whether judges and juries can make that decision reliably about a defendant who was 16 or 17 at the time of the crime.

The APA amicus brief presented the research regarding differences in adolescent decision-making in the context of criminal conduct and the criminal justice system. Adolescent criminal conduct often arises in settings that facilitate impulsive reactions, off-the-cuff conduct, group behavior, etc. The brief presented research regarding the transitory nature of adolescence, increased risk taking during that period, and decision-making attributes that affect criminal culpability. In addition, we advised the Court of emerging neuropsychological research that demonstrates the extended period over which the adolescent brain reaches adult maturity. A central part of APA's brief addressed the point that individualized capital sentencing proceedings do not allow a sufficiently reliable means of accounting for the mitigating effect of adolescence in determining whether a criminal defendant should be executed. APA also advised the Court of research regarding jury studies showing that unconscious racism may lead jurors to falsely attribute greater maturity and culpability to African- American adolescent offenders.

Notably APA did not dispute that 16 and 17 year olds should be held fully accountable for their criminal acts and subject to all penal sanctions, except capital punishment. (The effect of sparing this age group from the death penalty in most capital cases will be life in prison without parole.)

When the Simmons decision came down, APA's positions on several key points were included in Justice Kennedy's opinion for the majority. Work of APA member Laurence Steinberg, who chaired the MacArthur Foundation's Research Network on Adolescent Development and Juvenile Justice, and research he had summarized in recent articles, was a centerpiece of the second section of the opinion, which dealt with attributes of 16 and 17 year olds. It is important to acknowledge the APA members with expertise in this area who assisted in developing the APA brief and in evaluating carefully the arguments that we advanced. These include Thomas Grisso, Laurence Steinberg, Robert Kinscherff, Kirk Heilbrun, Randy Otto, Laura Schopp, Elizabeth Cauffman and Joel Dvoskin and many others who provided less formal review and comment along the way.

APA's strong presentation on these issues not only affected the majority opinion but also drew criticism both from the state of Missouri in its reply brief , arguing to uphold the juvenile death penalty , and from Justice Antonin Scalia who dissented from the majority opinion. In his opinion supporting the continued application of the death penalty to 16 and 17 year olds, Justice Scalia wrote "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." He then went on to briefly discuss APA's earlier brief in a 1989 case, Hodgson v Minnesota, involving a statute requiring parental consent before minors could obtain an abortion.

It is critical to understand that nowhere in our brief in Simmons did we take the position that 16 and 17 year olds lack the ability to take moral responsibility for their criminal decisions. No one and certainly not APA was arguing that 16 and 17 year olds don't know right from wrong and shouldn't be held morally accountable for their criminal conduct and therefore subject to severe punishment.

We took note of the Hodgson brief in the approval process for APA's brief in Simmons but concluded that the two cases were distinguishable in several respects. Simmons and Hodgson, while both dealing with adolescent decision-making, involved very different legal issues and different types of decisions. Therefore the research, which was different in each of the two cases, addressed distinct aspects of adolescent behavior and attributes. The two cases are of course complex but the following briefly describes the basic differences.

In Hodgson, the 1989 case, the issue before the Court was whether there was a sufficient basis to justify the state's position that requiring parental notification before an adolescent obtains an abortion is likely to lead to better abortion decisions. The primary thrust of the APA brief was that parental involvement generally occurs naturally. In those cases where parental notification will only occur because the state requires it, there is no support for the state's position that a better decision would be made if the parents are involved. Indeed APA argued that the data suggest that intrafamily relationships and the adolescent herself can be harmed by mandated parental notification. As a secondary point in that brief, APA presented research supporting the view that 14 and 15 year old adolescents generally have the capacity to consent necessary to make medical decisions for themselves, including ones that involve abortion and related moral points. That section was the source of the research Justice Scalia quoted in his dissent.

The Simmons case, as described above, was focused on criminal conduct, including, among other things, whether execution of 16 and 17 year olds can be justified by deterrence or retribution and whether courts can reliably determine whether an adolescent defendant is among the "worst of the worse" who merits execution. The assessment of maturity issue in the capital sentencing process is different from the abortion decision-making context because the assessment must address both the adolescent's maturity at the time the crime was committed (months or years before the sentencing proceeding) as well as his or her established character and, in some states, risk of future dangerousness. As pointed out in APA's brief and endorsed by Justice Kennedy, there is a fundamental problem in trying to separate those adolescents whose criminal conduct is transitory from those whose criminal conduct will become a part of their fully formed character. In light of the Eighth Amendment's concerns with reliability, the problems with assessment of this age group in criminal sentencing proceedings pose a fundamental legal problem. Notably this assessment problem is one of many bases for APA's policy calling for a moratorium on the death penalty, including the execution of juveniles.

Finally, of course there has been considerable research on juvenile decision-making since the 1989 brief was filed, particularly in the criminal context via the MacArthur Foundation Network mentioned above.

In sum, the state of Missouri, which was the proponent of the juvenile death penalty in Simmons, raised APA's earlier Hodgson brief in its pleadings prior to oral argument in an attempt to discredit APA's submission. It is rare for an amicus brief to receive the attention APA's brief did in rebuttal pleadings, something we took as a reflection on the strength of our brief. Justice Kennedy asked at oral argument if APA had "flip flopped" between the 1989 and 2004 briefs. The answer to this question (as described above) apparently satisfied him in that he went on to write the majority opinion excluding the death penalty for 16 and 17 year olds relying on a number of our arguments and cited research.

The APA's brief in Simmons can be found on the APA website at http://www.apa.org/psyclaw/roper-v-simmons.html.

Nathalie Gilfoyle
General Counsel
American Psychological Association

March 2005