The death penalty for juveniles: Bridging the gap between an evolving standard of decency and legislative policy

In Stanford v. Kentucky (1989), the U.S. Supreme Court held that the practice of executing juveniles who were age 16 or 17 at the time of their crime(s) did not violate the “evolving standards of decency” (ESD) of American society. This ESD determination was based on legislative authorization of this punishment. Although this interpretation of what constitutes an ESD has been controlling in death penalty cases since Gregg v. Georgia (1976), the high court's original conception of an ESD stressed the importance of other factors in its determination (e.g., historical review and empirical knowledge about executions). Because the ESD is a Court-created measure, legislatures are under no constitutional obligation to acknowledge the scope of concerns embodied in the historical genesis of this concept. Nevertheless, in this paper we oppose a juvenile death penalty and argue that legislatures should consider the importance of historical and research utilization components of the ESD concept when debating the validity of a policy regarding the death penalty for juveniles.