487 U. S. 815
June 29, 1988
William Wayne Thompson committed a brutal murder and was sentenced to die. But Thompson was only 15 years old at the time, and argued that the death penalty would be cruel and unusual punishment. While 15 year olds had been routinely executed long ago, the Supreme Court had long since established that it would strike down sentences which did not comport with the nation’s “evolving standards of decency.” The Court had to decide whether or not to strike down Thompson’s sentence on that basis.
The Court struck down his sentence 5-3 (Kennedy did not participate). Stevens, writing for a plurality with Brenna, Marshall, and Blackmun, said that the nation’s “evolving standards of decency” flatly prohibited execution for a murder committed at age 15. Nearly two thirds of the states banned the practice, and the remaining third only allowed it by tacit implication. He doubted that many of those states explicitly intended to allow it. Executions for under-16 murderers had become vanishingly rare, and none had occurred in 40 years. Stevens stressed that 15 was still a tender age, and that children of that age were denied the right to smoke, marry, drive, or vote in all or most states.
O’Connor concurred in judgment, and provided the fifth vote to vacate the death sentence. She was hesitant to find a national consensus against executing under-16 murderers, finding the answer to that question murky rather than obvious. Nevertheless, like Stevens, she wasn’t sure whether Oklahoma, by allowing 15 year olds to be tried as adults in rare circumstances, had really intended to allow for the imposition of the death penalty in these rare cases. Unless a state explicitly spelled out that 15 year olds were eligible for capital punishment, she refused to allow executions.
Scalia, joined by Rehnquist and White, wrote a valiant dissent. He showed that Oklahoma had carefully weighed the propriety of sentencing Thompson to death in every stage in the proceedings. Given this extensive consideration by the prosecutors, judge, and jury, it made no sense to hold that the jury’s ruling was somehow contrary to a national consensus. Many state laws allowed execution as a punishment for under-16s, and there was no reason to presume that these states didn’t know what their own laws meant. Furthermore, the rarity of the penalty’s imposition meant nothing, or else one could just as easily argue that a national consensus existed against executing women. Scalia pointed out the undeniable fact that many 15 year olds clearly understand the consequences of committing murder. As for O’Connor’s concurrence, it was a totally lawless attempt to split the baby. Finally, he quickly disposed of an alternate ground for vacating the sentence which the majority did not address.
I absolutely agree with everything in Scalia’s dissent, with the exception of his disheartening admission that even he accepts the awful “evolving standards of decency” test. It’s one of the worst constitutional distortions ever; Trop v. Dulles deserves to be near the very top of any shortlist of the Warren Court’s blatant activism. Logically, the “evolving standards of decency” test cannot possibly be correct, because it would hypothetically permit the most torturous of punishments to be imposed if society “evolved” to find them no longer cruel.