Deterring Roper’s Juveniles: Why Immature Criminal Youth Require the Death Penalty more than Adults – a Law & Economics Approach


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 show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because they underestimated the odds of being caught and convicted. For these three reasons, the Court held that they 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 use 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 risk-averse individual. Another way to think of juveniles is as demanders of crime who 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 that they could use to combat juvenile violence. In this paper I also introduce empirical evidence from a series of econometric studies that show that juveniles indeed can be deterred by punishment and to the same degree as adults. Given that juveniles can be deterred, it follows that if adults can be deterred by the death penalty, than so can juveniles. A plethora of econometric studies have emerged showing that the death penalty does reduce homicides and saves lives. The evidence of juveniles’ responsiveness to punishment belies the medical claims advanced by opponents of their execution. Furthermore, I argue that the only criteria for culpability is the ability to tell right from wrong, something that even the opponents of juvenile executions conceded juveniles have. I also show that many violent adult criminals suffer from the medical characterizations that typify Roper’s juveniles. Hence to rely on medical evidence to decide who should be spared from the death penalty is an absurd proposition, and medical characterizations should be reserved for what medicine does best, namely treatment.


Constitutional Law | Criminal Law | Criminal Procedure | Economics | Juvenile Law | Law and Economics | Law and Society

Date of this Version

August 2005