An Anniversary of Our Evolving Standards of Decency

More often than I would like, I have used this space to decry our shortcomings because we retain and still use capital punishment. This past Sunday, however, marked the 10th anniversary of a high point in our shared history.
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More often than I would like, I have used this space to decry our shortcomings because we retain and still use capital punishment. This past Sunday, however, marked the 10th anniversary of a high point in our shared history.

On March 1, 2005 the U.S. Supreme Court issued its ruling in Roper v. Simmons holding that the death penalty was an unconstitutional punishment for juvenile offenders. That opinion turned on the Court's recognition of our evolving standards of decency.

Just as is true of individuals, the Constitution acknowledges that as a society, we are capable of growing in our understanding of our shared humanity. As we learn more about ourselves as people, our criminal justice policies evolve to reflect a more nuanced and accurate understanding of the human condition.

From 1977 until 2005 seven states executed 22 juvenile offenders. More than half of those executions took place in Texas. When the Court first looked at the question in Stanford v. Kentucky in 1989, it held that juvenile offenders could be punished with death.

What happened just 12 years later in 2005?

We learned more about what makes young people act out. We understood more about brain development and the root causes of crime. And the measures we used to hold young people accountable evolved to some extent as well.

That phrase, evolving standards of decency was coined by Chief Justice Earl Warren in 1958 in the case of Trop v. Dulles. In that case the Supreme Court articulated the limits that the Constitution places on what punishment a government may impose. Just as importantly, it observed that the scope of the eighth amendment's protections are not static.

As society matures -- as we learn and grow -- the 8th amendment's protections grow as well.

The evolution of the Court's view on the legality of executing youthful offenders is an example. The Court's view on executing people with intellectual disabilities is another.

Advocates for people with intellectual disabilities and advocates for youthful offenders, engaged in a process of educating the public and policymakers on the science of developmental disabilities and the adolescent brain. This enhanced public understanding elevated growing discomfort with executions for people with intellectual disabilities and juveniles.

In 2002 when the Court revisited the question of executions for people with intellectual disabilities in Atkins v. Virginia, 18 states had voted with their feet to ban the practice.

Similarly when the Court had the opportunity to review the idea of executing juveniles, the country had already moved well away from that practice as well.

In the 10 years since the Court ruled in Roper v. Simmons, the march of progress continues. Six more states have eliminated death as a punishment. Today 18 states and the District of Columbia ban the practice altogether. Governors have ordered moratoriums on executions in Colorado, Oregon, Pennsylvania and Washington State. Eight other states have stopped executions for all practical purpose because they are caught in the morass of finding the right drugs to kill prisoners.

The nearing end of capital punishment is the beginning of a new era -- an era where common sense, personal accountability and healing for all victims of crime will be priorities.

It could not come at a better time. People from all across the political spectrum are re-examining criminal justice policies and asking hard questions. Communities, which previously had been locked out of the conversation, are taking their places at the table.

We have a new opportunity to craft a better vision -- one that reflects the strengths of our diverse backgrounds and life experiences.

At the center of this evolution is the understanding that all human beings are capable of change. This capacity to change is and should be a guiding principle of our criminal justice system. The system is designed not just to punish, but also to rehabilitate people who have committed crimes. When we continue to use the death penalty, we ignore this fundamentally human capacity and we do not live up to the goals we have set for our criminal justice system or our society.

This capacity to change, grow and be enlightened was indeed understood by the drafters of our Constitution. It is the timeless brilliance of the document and much to be embraced.

While the end of the death penalty is inevitable, how long we have to wait to move our country forward is up to us.

If you are ready to rid the country of an outdated death penalty that does not improve public safety, please get involved. It's easy and small things can make a big difference.

If we get to work now, someday, the Supreme Court will recognize what we already know: the death penalty is not up to our standards.

Find out how you can get involved in ending the death penalty.

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