In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association's amicus brief, which purported to scientifically show that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly prefer the present over the future, who love gains no matter how risky, who do not care for losses, and who cannot engage in proper cost-benefit analysis. This is because juveniles underestimate the odds of being caught and convicted. For these three reasons, the Court held that juveniles were not only less deterrable, but that they were also not as culpable as adults. This paper takes issue with this logic, especially the idea that juveniles cannot be deterred. If indeed juveniles are risk-lovers who cannot engage in cost-benefit analysis, because they prefer the present and misperceive the odds of being caught and punished, then the proper response is to increase the penalties that juveniles face. Using law and economics methodology, I will apply a simple numerical example to illustrate that juveniles can be deterred no matter how abnormal their preferences are. The deterrence, however, comes at a penalty much higher than what would be required to deter a normal riskaverse individual. One can think of juveniles as demanders of crime, meaning they have a very inelastic demand for crime. Thinking of punishment as the price of crime necessitates a very high price to deter juveniles, a price much higher than what adults should face. The Supreme Court, by abolishing the death penalty for juveniles, deprived the States of a valuable tool to combat juvenile violence. In this paper, I also introduce empirical evidence from a series of econometric studies that show that juveniles can indeed be deterred by punishment to the same degree as adults. It follows that if adults can be deterred by the death penalty, then so can juveniles. A plethora of econometric studies have emerged showing that the death penalty reduces homicides and saves lives. The evidence of juveniles' responsiveness to punishment belies the medical claims advanced by opponents of the death penalty for juveniles. Furthermore, I argue that the only criteria for culpability is the ability to tell right from wrong, a trait that even the opponents of juvenile executions conceded juveniles possess. I also show that many violent adult criminals suffer from the same medical characterizations that typify Roper's juveniles. Therefore, to rely on medical evidence to decide who should be spared the death penalty is an absurd proposition, and medical characterizations should be reserved for what medicine does best, namely treat and cure illnesses.
Moin A. Yahya,
Deterring Roper's Juveniles: Using a Law and Economics Approach to Show that the Logic of Roper Implies that Juveniles Require the Death Penalty More Than Adults,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol111/iss1/3