Roper V. Simmons and the Limits of the Adjudicatory Process

Abstract

In Roper v. Simmons, the Supreme Court held that executing juvenile offenders is cruel and unusual punishment. The opinion's analysis borrows much from Atkins v. Virginia, where the Court barred executions of mentally retarded offenders. But Roper seems vulnerable as an exemplification of judicial fiat, since what we have in Roper is a rather crude basis for categorically exempting a class of offenders from capital punishment. The lasting legacy of Roper rests with the way the Eighth Amendment embraces a risk assessment of the adjudicatory process, which puts Roper in the company of Miranda and Gideon, where a similar sort of risk assessment takes place. Roper ultimately is a case about the limits of the adjudicatory process, and that reading of Roper may point the way to the ultimate undoing of capital punishment.