State ex rel. Simmons v. Roper

• Decision Date: 26 August 2003
• Docket Number: No. SC 84454.,SC 84454.
• Parties: STATE ex rel. Christopher SIMMONS, Petitioner, v. Donald P. ROPER, Superintendent, Potosi Correctional Center, Respondent.
• Court: Missouri Supreme Court

112 S.W.3d 397

STATE ex rel. Christopher SIMMONS, Petitioner, v. Donald P. ROPER, Superintendent, Potosi Correctional Center, Respondent.

No. SC 84454.

Supreme Court of Missouri, En Banc.

August 26, 2003.

Jennifer L. Brewer, St. Louis, Patrick J. Berrigan, Watson & Dameron, L.L.P., Kansas City, for Petitioner.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen D. Hawke, Assistant Attorney General, Jefferson City, for Respondent.

Elizabeth Unger Carlyle, Lee's Summit, for Amicus Curiae American Civil Liberties Union.

LAURA DENVIR STITH, Judge.

Christopher Simmons was sentenced to death for a murder he committed when he was 17 years old. He argues that to execute him for a crime committed when he was under 18 constitutes cruel and unusual punishment.

In Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), the Supreme Court of the United States held that it constituted cruel and unusual punishment to execute persons who were 15 years of age or younger at the time of their offense. The following year, in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Supreme Court held that there was not then a national consensus against the execution of those who were 16 or 17 years old at the time of their crimes and declined to bar such executions. On that same day, the Supreme Court held that there was not then a national consensus to bar the execution of those who were mentally retarded. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

In 1993, Christopher Simmons murdered Shirley Crook. Because of Stanford, he did not argue that his age constituted a bar to imposition of the death penalty, although he did argue that his age was a mitigating circumstance. He was convicted of first-degree murder and sentenced to death in accordance with the jury's verdict. This Court affirmed his conviction and death sentence, as well as the denial of post-conviction relief. State v. Simmons, 944 S.W.2d 165 (Mo. banc 1997), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997).¹

Last year, in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that a national consensus had emerged against the execution of mentally retarded offenders since Penry. Mr. Simmons now asks us to hold that a similar consensus against the execution of juveniles has developed since Stanford, that the rationale for the Supreme Court's determination that the execution of juveniles was not cruel and unusual punishment has disappeared, and that the Eighth Amendment bars his execution.

This Court agrees. Applying the approach taken in Atkins, this Court finds that, in the fourteen years since Stanford was decided, a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade.²

Accordingly, this Court finds the Supreme Court would today hold such executions are prohibited by the Eighth and Fourteenth Amendments. It therefore sets aside Mr. Simmons' death sentence and re-sentences him to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.

I. RETROACTIVE APPLICATION OF JUVENILE DEATH PENALTY

The state contends that this Court should not reach the substantive issue whether the execution of persons for crimes committed as juveniles is prohibited by the Eighth and Fourteenth Amendments, because Mr. Simmons is barred from raising it since he did not do so at the time of his trial. We reject this argument.

In Penry, before reaching the substantive issue whether the Eighth Amendment prohibited the execution of the mentally retarded, the Supreme Court considered whether a decision barring such executions would apply retroactively under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Penry answered the question in the affirmative, stating, "[T]he first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Id. at 330, 109 S.Ct. 2934. The Supreme Court concluded:

Thus, if we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review.

Id.

Penry went on to hold that no national consensus against the execution of the mentally retarded existed in 1989. But, Atkins found that such a consensus had developed by 2002 and that the Eighth Amendment "`places a substantive restriction on the State's power to take the life' of a mentally retarded offender." Atkins, 536 U.S. at 321, 122 S.Ct. 2242, quoting, Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). In Johnson v. State, 102 S.W.3d 535, 539-40 (Mo. banc 2003), this Court determined that Atkins applied retroactively. Accord Van Tran v. State, 66 S.W.3d 790, 811 (Tenn.2001) (holding prior to Atkins that new rule barring execution of mentally retarded would be applied retroactively).

In parallel fashion, if, as a substantive matter, the Eighth Amendment prohibits the execution of persons under age 18 at the time of their offense regardless of the procedures followed, then such a rule would also fall under the first exception to nonretroactivity under Teague because it would deprive the state of the power to impose the punishment of death on such a person. Cf. Penry, 492 U.S. at 330, 109 S.Ct. 2934. Such a rule would therefore be applicable to persons, such as Mr. Simmons, whose cases are on collateral review, and the usual waiver rules will not apply.³ See also Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ("[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.").

II. NATIONAL CONSENSUS AGAINST EXECUTION OF JUVENILES AND THE MENTALLY RETARDED

To determine whether the application of the death penalty to juveniles constitutes cruel and unusual punishment, it is helpful to examine the Supreme Court's decisions in prior cases addressing the execution of juveniles and of the mentally retarded.

A. The Death Penalty for Juveniles: Thompson and Stanford.

1. Thompson v. Oklahoma. In Thompson, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), the Supreme Court determined that the Eighth Amendment categorically prohibits the execution of those who were 15 years old or younger at the time of their crimes. Using an approach similar to that which he would utilize in Atkins some fourteen years later, Justice Stevens, in the principal opinion, said that in determining what constitutes cruel and unusual punishment, judges should be "guided by the `evolving standards of decency that mark the progress of a maturing society.'" Id. at 821, 108 S.Ct. 2687, quoting, Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Such standards cannot remain static, but must "`acquire meaning as public opinion becomes enlightened by humane justice,'" for "`a principle to be vital must be capable of wider application than the mischief which gives it birth.'" Id. at 821 n. 4, 108 S.Ct. 2687, quoting, Weems v. United States, 217 U.S. 349, 373, 378, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

To determine current standards of decency, Thompson examined: (a) relevant legislative enactments, and (b) evidence of how juries viewed the propriety of execution of the mentally retarded. It also considered (c) the views of respected national and international organizations. Finally, in light of the above and other factors, (d) the Supreme Court made its own judgment as to the propriety of such executions and explained "why these indicators of contemporary standards of decency confirm our judgment that such a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty." Thompson, 487 U.S. at 822-23, 108 S.Ct. 2687.

a. Legislative Enactments. In reviewing statutes governing punishment of children, Thompson found that "[t]he line between childhood and adulthood is drawn in different ways by various States." Id. at 824, 108 S.Ct. 2687. Fourteen state legislatures then barred capital punishment altogether. Id. at 826, 108 S.Ct. 2687. In nineteen other states, the legislature permitted capital punishment, but state statutes failed to expressly state the minimum age for its imposition. Id. at 826-27, 108 S.Ct. 2687. Eighteen remaining states set a minimum age, varying from 16 to 18. Id. at 829, 108 S.Ct. 2687. No legislature had adopted a statute explicitly permitting the execution of those under age 16. Id.

b. Imposition of the Death Penalty. Thompson also found that juries rarely imposed the death penalty on those under 16, that only eighteen to twenty such persons had been executed in the 20th century, and only one since 1948. Id. at 832, 108 S.Ct. 2687. Between 1982 and 1986, only five persons age 15 or younger were sentenced to death in the United States, leading the Court to conclude that, "these five young offenders have received sentences that are `cruel and unusual in the same way that being struck by lightning is cruel and unusual.'" Id. at 833, 108 S.Ct. 2687, quoting, Furman v. Georgia, 408 U.S. 238, 309, 92 S.Ct....