Berman [Ohio State]: Administering Roper Commentary
Berman [Ohio State]: Administering Roper
Edited by:

Douglas Berman [Moritz College of Law, Ohio State University]:

"When the Supreme Court declared in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court punted a number of tough administrative issues when it left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."  As noted in this post about a recent California Supreme Court ruling, three years later the states are still sorting through post-Atkins administrative issues.

Because chronological age is much easier to determine than mental retardation, the states should have a much easier time administering Roper. Nevertheless, there are still, I believe, some short-term administrative challenges for states that have been applying capital sentencing systems to juvenile offenders.  For instance, I had no ready response when a colleague today asked: "Do the cases go back to the trial judge for re-sentencing or default to life?"  This question also led me to ponder whether a juvenile offender sentenced to death at a time when a jurisdiction did not have the alternative of life without parole could now claim parole eligibility.  (I assume some of these issues have been hashed out post-Atkins or earlier, though I doubt definitively.)

Moreover, I suspect there are more than a few on-going capital proceedings involving juvenile offenders that might need to be significantly adjusted.  For example, as this article details, there is a high-profile murder trial involving a juvenile offender on-going in Philadelphia.  Might the defendant in this case seek a mis-trial by claiming it is now inappropriate for a death-qualified jury to determine his guilt. [March 2, 2005: Sentencing and Policy Blog has the post.]

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