J. Stevens' Concurring Opinion to Roper v. Simmons Decision

While giving a concurring opinion to Roper v. Simmons decision, Justice of the U.S. Supreme Court John Paul Stevens appealed to the original understanding of the main provision of the Eighth Amendment but not its current interpretation (Roper v. Simmons). He stated that if the meaning of that declaration had been invariable since its first determination, then, nowadays, no one could refer to it with the purpose of exemption of juveniles from capital punishment. It should be noted that this statement has certain substantiation.

The point is that the meaning of the ban to impose “cruel and unusual” punishment has undergone essential changes since its first drafting. Initially, this legislative claim was borrowed from the Bill of Rights of 1689 of England, which in that part was focused mostly on the issue of meeting formal requirements during sentencing by the courts, as well as correspondence of such a punishment with the severity of the crime committed. However, the American draftsmen, while fixing this statement in the Eight Amendment to the U.S. Constitution, somewhat changed its concept and understanding. Thus, the Eight Amendment was bound strictly to certain methods of the death penalty exercise in order to ascertain whether that penalty had some degree of “barbarity” or similarity with “torture”. Therefore, the issue of constitutionality of this kind of penalty was not discussed then at all (Hart, 1959-60).

At the same time, the Eight Amendment was rather widely interpreted as to the part of meanings of “barbarity” and “torture” as well. That situation was basically explained by different levels of social and humane justice and evolving values and “standards of decency that mark the development of a maturing society” (Trop v. Dulles, 1958). However, those “standards of decency… of a maturing society” have finally led the American nation for the understanding that even the remainder of methods of the death penalty that are applied today seem to be cruel and cannot be proportionate to any of humane deeds. Moreover, there is even a version of the trial in some states when the court decides whether it is humane to use the electric chair for executions. If the judge decides that electrocution is the most humane method for that person among other possible methods, then this kind of execution is used (Thomas, 1973).

Meanwhile, the fact that the principle fixed in the Eight Amendment has not been invariable one can also be seen from such judicial precedents as Furman v. Georgia, Gregg v. Georgia and others (Furman v. Georgia, 1972; Gregg v. Georgia, 1976). Therefore, it is obvious that, according to the original meaning of the Eight Amendment to the U.S. Constitution, the issue of constitutionality of the death penalty as to the juveniles could not be even raised.