The Juvenile Death Penalty

James P. Fisher, 1989

An academic redux (“throwback”) to the great 80’s!

By James P. Fisher, Commonwealth’s Attorney

Republished after law school by the National District Attorneys Association

In 1987, my law school’s Law Review journal, of which I was a member and editor, published my article on the juvenile death penalty.  At the time, the United States Supreme Court was considering Stanford v. Kentucky.  Though still a law student, I predicted that the Court would uphold the penalty as applied to Kevin Stanford who robbed, raped, sodomized and murdered a woman who was a gas station attendant at the store from which he stole 300 cartons of cigarettes, fuel and a small amount of cash.

Some time had passed since the original publication in 1987.  In the interim, I had become a full time Assistant Commonwealth’s Attorney for The Honorable Robert F. Horan, Jr., of Fairfax County, Virginia.  I remember being pleasantly surprised and honored when I was contacted by the editor of The Prosecutor, which was the nationally distributed journal of the NDAA (National District Attorneys Association).  They wished to reprint and republish my article in their journal some two years later, which assured that it would ultimately land on the desk of virtually every D.A. in America.  The reason for their call was that the Supreme Court was on the verge of deciding the issue that I confronted in my academic publication.

NDAA National Publication

As it turned out, my article would correctly predict that the court would rule the death penalty, as applied to Stanford, a 17 year old at the time he murdered the victim, was constitutional.  In anticipation of the court’s imminent ruling, the NDAA wanted to reinforce the position of the american prosecuting attorney – and they selected my article for that purpose.  It was humbling for sure.  While I was a successful law student, I was just a few years out of law school, and had not really gained the experience necessary to be anticipating the actions of the United States Supreme Court.  In fact, I was still a couple years away from my first murder case, which would not come until 2 years later (1991).  Regardless, by the time the Stanford case was decided, The Prosecutor had gone to print, and they stopped the presses in order to add a post-production bulletin announcing the correctness of my interpretation based upon the Court’s decision.  But the story doesn’t end on that note. 

Added as the NDAA had gone to press with the article when the court announced their decision

Just 15 years later, one Supreme Court Justice (Kennedy) changed his mind.  A new decision – Roper v. Simmons (2005) declared that the execution of an offender who was under 18 at the time of the killing was unconstitutional.  One vote flipped the law. 

Today, it remains clear as a matter of constitutional law that the execution of juveniles for capital crimes committed while under the age of majority violates the 8th Amendments guarantee against cruel and unusual punishment. However, it took some evolution to arrive at this point in legal history.