I have discovered that the defendant involved in the case (Stanford v. Kentucky) that upheld the execution of minors (16-17) has since had his sentence commuted to life imprisonment. It might also be noted that the decision was decided fifteen years ago, given it involved a fifteen year old defendant. More importantly, the commutation just adds proof to the fact that executing those under eighteen does not meet current standards of decency. And, as noted by my source, the "governor that did that presided over the only executions that Kentucky has had since the reinstatement of the death penalty, so he was not an anti-death penalty advocate."
Thompson v. Oklahoma (1987) set sixteen as the cutoff though only four justices fully accepted the rule. Justice O'Connor made it 5-3 (Justice Kennedy not participating), noting that she was pretty sure the evidence did go the way of the majority. On the other hand, she ruled more narrowly that Oklahoma would at least have set an age, which would suggest they gave the issue some serious thought. As I noted a few days back, her rule led the Washington Supreme Court to strike down their own law. Her assistant vote might make some abolitionists nervous, though it should be noted that she also made clear in the opinion that it should not be read to apply to the execution of the mentally retarded. Justice O'Connor later voted with the majority in Atkins v. VA, which did just that.
Thompson is important for various reasons. First, it notes that the Court did repeatedly refer to international opinion in determining what was "cruel and unusual." Second, it explained how minors have less rights and are deemed less culpable than adults. For instance:
"[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth."
This is why the "the Alabama brief" that Justice Kennedy and others found so impressive was not really so special. The basic point of the short brief was to supply six case studies of minors who committed heinous crimes and showed some degree of guilt. It's useful for prosecutors to remind people of such things, since appellate courts sometimes take an above the fray view of things that perhaps underemphasizes the crimes.* All the same, I was not impressed: is it supposed to be news that children do horrible things and can be quite devious about doing them? The argument being made is that they are not as culpable, not worthy of death.
The Thompson ruling, of course, was concerned with a cutoff of sixteen. It is easier to show that this is an age for which most would be quite wary of and one in which states do not consider the individuals involved full adults. For instance, though not draft age, seventeen is the age when one can join the service. And regarding a more trivial matter, sixteen or seventeen is the usual age for driving licenses. The value of the opinion, however, is in its basic principles. The citation of international opinion, which is a matter of growing importance to many of the justices, alone adds fuel to the argument for overturning a 5-4 opinion (Stanford) by expanding the rule to eighteen.
Kevin Stanford already benefited from the changing mores that suggest why; the others on death row who committed crimes when they were under eighteen should as well. And, if possible, those functionally that age as well.
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* Though appropriate, this might be suggested from the opening of Thompson: "Because there is no claim that the punishment would be excessive if the crime had been committed by an adult, only a brief statement of facts is necessary." Compare this to the dissent's extended discussion of the facts.
I would suggest that the value of focusing on the heinous nature of the events when arguing the legitimacy of upholding harsh penalties is a mixed bag. Cruel and unusual punishments sometimes are inflicted partly because of the emotions raised when heinous crimes are committed. The dissent also notes that the state had procedures in place to decide if the defendant deserved the penalty. This too is useful and suggests it isn't just arbitrary. This only helps to a degree, of course, if the practice still is problematic.