Justice Kennedy’s majority opinion in Roper v. Simmons maintains that the deterrence argument for the death penalty apply with “lesser force” to juveniles. Kennedy writes: “it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles,” and notes that, as a general matter, “juveniles will be less susceptible to deterrence” than adults.
Interestingly enough, the facts of the case, as described in Kennedy’s own opinion, suggest that criminal sanctions do have a potential deterrent effect on juveniles:
There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. [Emphasis added.]
In other words, Simmons sought to induce other juveniles to participate in his crimes by telling them they need not fear criminal prosecution. This argument would have been unnecessary were his friends not deterred, at least in part, by such threats. From this proposition it is but a small step to assume that the severity of the criminal sanction — death as opposed to a set jail term — could have some deterrent effect on the margin. This does not mean that capital punishment for juveniles is a good idea, but it does suggest that Justice Kennedy may have been a bit too quick to dismiss the potential for deterrence. Indeed, his own recital of the facts should have raised a red flag on this point.
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