A. Eighth Amendment Jurisprudence
1. The Ineffectiveness of Retribution and Deterrence. 1501
Atkins and Roper both place significant emphasis on the difficulty of applying retribution and deterrence rationales to mentally retarded and juvenile offenders.2 5 Retribution, the punishment imposed as repayment or revenge for the offense committed,2 6 and deterrence, the prevention of criminal behavior by fear of punishment,27 have long been among society's goals in punishing its offenders.2 8 The Court continues to embrace these philosophical ends, citing the effectiveness of both retribution and deterrence as the primary legitimate social justification of the death penalty.29 Thus, if neither retribution nor deterrence is served by execution, the imposition of the death penalty is unconstitutional.0
a. Retribution
Retribution demands that the severity of punishment be dependent on the offender's culpability." In Atkins, the Court found that mental retardation directly affects a criminal offender's
approach a categorical challenge to life without parole sentences. In Graham, the Court specifically adopted the analysis used in Roper and Atkins. Graham, 130 S. Ct. at 2023.
24. See infra note Ill and accompanying text.
25. Roper, 543 U.S. at 571; Atkins, 536 U.S. at 319-20.
26. BLACK'S LAW DICTIONARY 1431 (9th ed. 2009).
27. Id. at 514.
28. See generally THOMAS HOBBES, LEVIATHAN 214-20 (Richard Tuck ed., Cambridge Univ. Press 2006) (1651) (asserting that the justification of punishment must be utilitarian and that punishment is by nature retributive).
29. Gregg v. Georgia, 428 U.S. 153, 183 (1976).
30. Enmund v. Florida, 458 U.S. 782, 798 (1982).
31. Atkins v. Virginia, 536 U.S. 304, 318-19 (2002).
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LOYOLA OF LOS ANGELES LAW REVIEW [Vol.43:1495 culpability.32 The clinical definition of mental retardation describes sub-average intellectual functioning as well as significant limitations in adaptive skills-such as communication, care, and self-direction-that manifest before the age of eighteen." In turn, these impairments affect a mentally retarded offender's ability to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.34 The Atkins Court found these characteristics created a lesser culpability, inadequate to justify the most severe punishment available to the State.35
The argument in Roper was the same as that in Atkins:
diminished culpability renders the case for retribution not "strong"
enough to justify the "law's most severe penalty."" In order to establish the juvenile offender's diminished culpability, the Court described three conditions intrinsic to youth, two of which distinctly echoed those described in Atkins." First, a juvenile's lack of maturity and undeveloped sense of responsibility often result in "impetuous and ill-considered actions."38 Second, a juvenile is "more vulnerable . . . to negative influences and outside pressures, including peer pressure."" Third, a juvenile's personality traits are "more transitory, less fixed" than those of an adult.40 Taken in totality, the Roper Court concluded that those characteristics combined to
"render suspect any conclusion that a juvenile falls among the worst
32. Id.; James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REv. 414, 429-32 (1985).
33. John McGee & Frank Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in THE CRIMINAL JUSTICE SYSTEM AND MENTAL RETARDATION 55, 58-60 (Ronald W. Conley, Ruth Luckasson, & George N. Bouthilet eds.,
1992).
34. Kenneth L. Appelbaum & Paul S. Appelbaum, Criminal-Justice-Related Competencies in Defendants with Mental Retardation, 22 J. PSYCHIATRY & L. 483, 487-89 (1994).
35. Atkins, 536 U.S. at 319.
36. Roper v. Simmons, 543 U.S. 551, 571 (2005).
37. Compare Atkins, 536 U.S. at 318 (describing mentally retarded offenders' proclivity to act according to impulse rather than a premeditated plan and follow rather than lead in group settings), with Roper, 543 U.S. at 569 (describing juvenile offenders' vulnerability to impulsive decisions, negative influence, and outside pressure).
38. Roper, 543 U.S. at 569 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).
39. Id. at 569 (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).
40. Id. at 570. See generally ERIK H. ERIKSON, IDENTITY: YOUTH AND CRISIS (W.W.
Norton 1968).
1502
IS LIFE THE SAME AS DEATH?
offenders" since the irresponsible conduct of a juvenile is not as morally reprehensible as that of an adult.41 Ultimately, the Court found the case for retribution not as strong with a juvenile as with an adult offender.4 2
b. Deterrence
Capital punishment works as an effective deterrent "only when murder is the result of premeditation and deliberation"43 because it is based upon the assumption that the increased severity of punishment will prevent people from murdering." However, as with retribution, the mentally retarded offender has certain cognitive and behavioral incapacities, such as diminished capabilities to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses that render the calculus of deterrence ineffective and execution unjustifiable.45
The Atkins Court reasoned that these characteristics particular to mentally retarded offenders decrease the likelihood that mentally retarded individuals can adequately reason that their actions may lead to their execution and therefore control their conduct based on that information.46 Since only mentally retarded offenders are precluded from receiving capital punishment, offenders who can engage in such analytical reasoning still face the threat of execution, thereby preserving the greater societal deterrent value of capital punishment.47
In Roper, the Court concluded that the very same youthful characteristics that diminished a juvenile offender's culpability such that retribution was unjustifiable also rendered the deterrence rationale less effective.48 Similar to how it treated the mentally retarded offender, the Court treated the possibility that a youthful offender would engage in any cost-benefit analysis that would attach
41. Roper, 543 U.S. at 570 (quoting Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)).
42. Id at 571.
43. Enmund v. Florida, 458 U.S. 782, 799 (1982) (quoting Fisher v. United States, 328 U.S.
463, 484 (1946) (Frankfurter, J., dissenting)).
44. Atkins v. Virginia, 536 U.S. 304, 320 (2002).
45. Id.
46. Id 47. Id.
48. Roper v. Simmons, 543 U.S. 551, 571 (2005).
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LOYOLA OF LOS ANGELES LA WREVIEW [Vol. 43:1495 weight to the possibility of execution as virtually nonexistent.49 Thus, as with mentally retarded offenders, executing juveniles furthered no
societal interest in deterrence.
2. A Reduced Capacity to Effectively Demonstrate Mitigation