Thompson v. Oklahoma/Dissent Scalia

J S, with whom T C J and J W join, dissenting.

If the issue before us today were whether an automatic death penalty for conviction of certain crimes could be extended to individuals younger than 16 when they commit the crimes, thereby preventing individualized consideration of their maturity and moral responsibility, I would accept the plurality's conclusion that such a practice is opposed by a national consensus, sufficiently uniform and of sufficiently long standing, to render it cruel and unusual punishment within the meaning of the Eighth Amendment. We have already decided as much, and more, in Lockett v. Ohio, 438 U.S. 586 (1978). I might even agree with the plurality's conclusion if the question were whether a person under 16 when he commits a crime can be deprived of the benefit of a rebuttable presumption that he is not mature and responsible enough to be punished as an adult. The question posed here, however, is radically different from both of these. It is whether there is a national consensus that no criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime. Because there seems to me no plausible basis for answering this last question in the affirmative, I respectfully dissent.

I
I begin by restating the facts since I think that a fuller account of William Wayne Thompson's participation in the murder, and of his certification to stand trial as an adult, [p860] is helpful in understanding the case. The evidence at trial left no doubt that on the night of January 22–23, 1983, Thompson brutally and with premeditation murdered his former brother-in-law, Charles Keene, the motive evidently being, at least in part, Keene's physical abuse of Thompson's sister. As Thompson left his mother's house that evening, in the company of three older friends, he explained to his girlfriend that "we're going to kill Charles." Several hours later, early in the morning of January 23, a neighbor, Malcolm "Possum" Brown, was awakened by the sound of a gunshot on his front porch. Someone pounded on his front door shouting: "Possum, open the door, let me in. They're going to kill me." Brown telephoned the police, and then opened the front door to see a man on his knees attempting to repel blows with his arms and hands. There were four other men on the porch. One was holding a gun and stood apart, while the other three were hitting and kicking the kneeling man, who never attempted to hit back. One of them was beating the victim with an object 12 to 18 inches in length. The police called back to see if the disturbance was still going on, and while Brown spoke with them on the telephone the men took the victim away in a car.

Several hours after they had left Thompson's mother's house, Thompson and his three companions returned. Thompson's girlfriend helped him take off his boots, and heard him say: "[W]e killed him. I shot him in the head and cut his throat and threw him in the river." Subsequently, the former wife of one of Thompson's accomplices heard Thompson tell his mother that "he killed him. Charles was dead and Vicki didn't have to worry about him anymore." During the days following the murder Thompson made other admissions. One witness testified that she asked Thompson the source of some hair adhering to a pair of boots he was carrying. He replied that was where he had kicked Charles Keene in the head. Thompson also told her that he had cut Charles' throat and chest and had shot him in the head. An- [p861] other witness testified that when she told Thompson that a friend had seen Keene dancing in a local bar, Thompson remarked that that would be hard to do with a bullet in his head. Ultimately, one of Thompson's codefendants admitted that after Keene had been shot twice in the head Thompson had cut Keene "so the fish could eat his body." Thompson and a codefendant had then thrown the body into the Wa hita River, with a chain and blocks attached s9 that it would not be found. On February 18, 1983, the body was recovered. The Chief Medical Examiner of Oklahoma concluded that the victim had been beaten, shot twice, and that his throat, chest, and abdomen had been cut.

On February 18, 1983, the State of Oklahoma filed an information and arrest warrant for Thompson, and on February 22 the State began proceedings to allow Thompson to be tried as an adult. Under Oklahoma law, anyone who commits a crime when he is under the age of 18 is defined to be a child, unless he is 16 or 17 and has committed murder or certain other specified crimes, in which case he is automatically certified to stand trial as an adult. Okla. Stat., Tit. 10, §§ 1101, 1104.2 (Supp. 1987). In addition, under the statute the State invoked in the present case, juveniles may be certified to stand trial as adults if: (1) the State can establish the "prosecutive merit" of the case, and (2) the court certifies, after considering six factors, that there are no reasonable prospects for rehabilitation of the child within the juvenile system. Okla. Stat., Tit. 10, § 1112(b) (1981).

At a hearing on March 29, 1983, the District Court found probable cause to believe that the defendant had committed first-degree murder and thus concluded that the case had prosecutive merit. A second hearing was therefore held on April 21, 1983, to determine whether Thompson was amenable to the juvenile system, or whether he should be certified to stand trial as an adult. A clinical psychologist who had examined Thompson testified at the second hearing that in her opinion Thompson understood the difference between [p862] right and wrong but had an antisocial personality that could not be modified by the juvenile justice system. The psychologist testified that Thompson believed that because of his age he was beyond any severe penalty of the law, and accordingly did not believe there would be any severe repercussions from his behavior. Numerous other witnesses testified about Thompson's prior abusive behavior. Mary Robinson, an employee of the Oklahoma juvenile justice system, testified about her contacts with Thompson during several of his previous arrests, which included arrests for assault and battery in August 1980; assault and battery in October 1981; attempted burglary in May 1982; assault and battery with a knife in July 1982; and assault with a deadly weapon in February 1983. She testified that Thompson had been provided with all the counseling the State's Department of Human Services had available, and that none of the counseling or placements seemed to improve his behavior. She recommended that he be certified to stand trial as an adult. On the basis of the foregoing testimony, the District Court filed a written order certifying Thompson to stand trial as an adult. That was appealed and ultimately affirmed by the Oklahoma Court of Criminal Appeals.

Thompson was tried in the District Court of Grady County between December 4 and December 9, 1983. During the guilt phase of the trial, the prosecutor introduced three color photographs showing the condition of the victim's body when it was removed from the river. The jury found Thompson guilty of first-degree murder. At the sentencing phase of the trial, the jury agreed with the prosecution on the existence of one aggravating circumstance, that the murder was "especially heinous, atrocious, or cruel." As required by our decision in Eddings v. Oklahoma, 455 U.S. 104, 115–117 (1982), the defense was permitted to argue to the jury the youthfulness of the defendant as a mitigating factor. The jury recommended that the death penalty be imposed, and the trial judge, accordingly, sentenced Thompson to death. [p863] Thompson appealed, and his conviction and capital sentence were affirmed. Standing by its earlier decision in Eddings v. State, 616 P.2d 1159, 1166–1167 (1980), rev'd on other grounds, 455 U.S. 104 (1982), the Oklahoma Court of Criminal Appeals held that "once a minor is certified to stand trial as an adult, he may also, without violating the Constitution, be punished as an adult." 724 P.2d 780, 784 (1986). It also held that admission of two of the three photographs was error in the guilt phase of the proceeding, because their prejudicial effect outweighed their probative value; but found that error harmless in light of the overwhelming evidence of Thompson's guilt. It held that their prejudicial effect did not outweigh their probative value in the sentencing phase, and that they were therefore properly admitted, since they demonstrated the brutality of the crime. Thompson petitioned for certiorari with respect to both sentencing issues, and we granted review. 479 U.S. 1084 (1987).

A
As the foregoing history of this case demonstrates, William Wayne Thompson is not a juvenile caught up in a legislative scheme that unthinkingly lumped him together with adults for purposes of determining that death was an appropriate penalty for him and for his crime. To the contrary, Oklahoma first gave careful consideration to whether, in light of his young age, he should be subjected to the normal criminal system at all. That question having been answered affirmatively, a jury then considered whether, despite his young age, his maturity and moral responsibility were sufficiently developed to justify the sentence of death. In upsetting this particularized judgment on the basis of a constitutional absolute, the plurality pronounces it to be a fundamental principle of our society that no one who is as little as one day short of his 16th birthday can have sufficient maturity and moral responsibility to be subjected to capital punishment for any [p864] crime. As a sociological and moral conclusion that is implausible; and it is doubly implausible as an interpretation of the United States Constitution.

The text of the Eighth Amendment, made applicable to the States by the Fourteenth, prohibits the imposition of "cruel and unusual punishments." The plurality does not attempt to maintain that this was originally understood to prohibit capital punishment for crimes committed by persons under the age of 16; the evidence is unusually clear and unequivocal that it was not. The age at which juveniles could be subjected to capital punishment was explicitly addressed in Blackstone's Commentaries on the Laws of England, published in 1769 and widely accepted at the time the Eighth Amendment was adopted as an accurate description of the common law. According to Blackstone, not only was 15 above the age (viz., 7) at which capital punishment could theoretically be imposed; it was even above the age (14) up to which there was a rebuttable presumption of incapacity to commit a capital (or any other) felony. 4 W. Blackstone, Commentaries *23–*24. See also M. Hale, Pleas of the Crown *22 (describing the age of absolute incapacity as 12 and the age of presumptive incapacity as 14); Kean, The History of the Criminal Liability of Children, 53 L.Q. Rev. 364, 369–370 (1937); Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While under Age Eighteen, 36 Okla. L. Rev. 613, 614–615 (1983) (hereinafter Streib, Death Penalty for Children). The historical practice in this country conformed with the common-law understanding that 15-year-olds were not categorically immune from commission of capital crimes. One scholar has documented 22 executions, between 1642 and 1899, for crimes committed under the age of 16. See Streib, Death Penalty for Children 619.

Necessarily, therefore, the plurality seeks to rest its holding on the conclusion that Thompson's punishment as an adult is contrary to the "evolving standards of decency that [p865] mark the progress of a maturing society." Trop v. Dulles,  356 U.S. 86, 101 (1958) (plurality opinion) (Warren, C.J.). Ante, at 821. Of course, the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views. To avoid this danger we have, when making such an assessment in prior cases, looked for objective signs of how today's society views a particular punishment. Furman v. Georgia, 408 U.S. 238, 277–279 (1972) (B, J., concurring). See also Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (plurality opinion) (Stewart, Powell, and S, JJ.); Coker v. Georgia, 433 U.S. 584, 593–597 (1977); Enmund v. Florida, 458 U.S. 782, 788–789 (1982). The most reliable objective signs consist of the legislation that the society has enacted. It will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives.

It is thus significant that, only four years ago, in the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 2149, Congress expressly addressed the effect of youth upon the imposition of criminal punishment, and changed the law in precisely the opposite direction from that which the plurelity's perceived evolution in social attitudes would suggest: It lowered from 16 to 15 the age at which a juvenile's case can, "in the interest of justice," be transferred from juvenile court to Federal District Court, enabling him to be tried and punished as an adult. 18 U.S.C. § 5032 (1982 ed., Supp. IV). This legislation was passed in light of Justice Department testimony that many juvenile delinquents were "cynical, street-wise, repeat offenders, indistinguishable, except for their age, from their adult criminal counterparts," Hearings on S. 829 before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 98th Cong., 1st Sess., 551 (1983), and that in 1979 alone juveniles under the age of 15, i.e., almost a year younger than Thompson, had committed a total of 206 homicides nationwide, more than [p866] 1,000 forcible rapes, 10,000 robberies, and 10,000 aggravated assaults. Id., at 554. Since there are federal death penalty statutes which have not been determined to be unconstitutional, adoption of this new legislation could at least theoretically result in the imposition of the death penalty upon a 15- year-old. There is, to be sure, no reason to believe that the Members of Congress had the death penalty specifically in mind; but that does not alter the reality of what federal law now on its face permits. Moreover, if it is appropriate to go behind the face of the statutes to the subjective intentions of those who enacted them, it would be strange to find the consensus regarding criminal liability of juveniles to be moving in the direction the plurality perceives for capital punishment, while moving in precisely the opposite direction for all other penalties.

[p867] Turning to legislation at the state level, one observes the same trend of lowering rather than raising the age of juvenile criminal liability. As for the state status quo with respect to the death penalty in particular: The plurality chooses to "confine [its] attention" to the fact that all 18 of the States that establish a minimum age for capital punishment have chosen at least 16. Ante, at 829. But it is beyond me why an accurate analysis would not include within the computa- [p868] tion the larger number of States (19) that have determined that no minimum age for capital punishment is appropriate, leaving that to be governed by their general rules for the age at which juveniles can be criminally responsible. A survey of state laws shows, in other words, that a majority of the States for which the issue exists (the rest do not have capital punishment) are of the view that death is not different insofar as the age of juvenile criminal responsibility is concerned. And the latter age, while presumed to be 16 in all the States, see ante, at 824, can, in virtually all the States, be less than 16 when individuated consideration of the particular case warrants it. Thus, what Oklahoma has done here is precisely what the majority of capital-punishment States would do.

When the Federal Government, and almost 40% of the States, including a majority of the States that include capital punishment as a permissible sanction, allow for the imposition of the death penalty on any juvenile who has been tried as an adult, which category can include juveniles under 16 at the time of the offense, it is obviously impossible for the plurality to rely upon any evolved societal consensus discernible in legislation-or at least discernible in the legislation of this society, which is assuredly all that is relevant. Thus, the [p869] plurality falls back upon what it promises will be an examination of "the behavior of juries." Ante, at 831. It turns out not to be that, perhaps because of the inconvenient fact that no fewer than five murderers who committed their crimes under the age of 16 were sentenced to death, in five different States, between the years 1984 and 1986. V. Streib, Death Penalty for Juveniles 168–169 (1987). Instead, the plurality examines the statistics on capital executions, which are of course substantially lower than those for capital sentences because of various factors, most notably the exercise of executive clemency. See Streib, Death Penalty for Children 619. Those statistics show, unsurprisingly, that capital punishment for persons who committed crimes under the age of 16 is rare. We are not discussing whether the Constitution requires such procedures as will continue to cause it to be rare, but whether the Constitution prohibits it entirely. The plurality takes it to be persuasive evidence that social attitudes have changed to embrace such a prohibition—changed so clearly and permanently as to be irrevocably enshrined in the Constitution—that in this century all of the 18 to 20 executions of persons below 16 when they committed crimes occurred before 1948.

Even assuming that the execution rather than the sentencing statistics are the pertinent data, and further assuming that a 4-decade trend is adequate to justify calling a constitutional halt to what may well be a pendulum swing in social attitudes, the statistics are frail support for the existence of the relevant trend. There are many reasons that adequately account for the drop in excecutions other than the premise of general agreement that no 15-year-old murderer should ever be executed. Foremost among them, of course, was a reduc- [p870] tion in public support for capital punishment in general. Of the 14 States (including the District of Columbia) that currently have no death penalty statute, 11 have acquired that status since 1950. V. Streib, Death Penalty for Juveniles 42, Table 3-1. That reduction in willingness to impose capital punishment (which may reasonably be presumed to have been felt even in those States that did not entirely abolish it), combined with the modern trend, constitutionalized in Lockett v. Ohio, 438 U.S. 586 (1978), towards individualized sentencing determinations rather than automatic death sentences for certain crimes, reduced the total number of executions nationwide from an average of 1,272 per decade in the first half of the century to 254 per decade since then. See V. Streib, Death Penalty for Juveniles 56, Table 4-1. A society less ready to impose the death penalty, and entirely unwilling to impose it without individualized consideration, will of course pronounce death for a crime committed by a person under 16 very rarely. There is absolutely no basis, however, for attributing that phenomenon to a modern consensus that such an execution should never occur-any more than it would have been accurate to discern such a consensus in 1927 when, despite a level of total executions almost five times higher than that of the post-1950 period, there had been no execution for crime committed by juveniles under the age of 16 for almost 17 years. That that did not reflect a new societal absolute was demonstrated by the fact that in approximately the next 17 years there were 10 such executions. Id., at 191–208.

In sum, the statistics of executions demonstrate nothing except the fact that our society has always agreed that executions of 15-year-old criminals should be rare, and in more modern times has agreed that they (like all other executions) should be even rarer still. There is no rational basis for discerning in that a societal judgment that no one so much as a day under 16 can ever be mature and morally responsible enough to deserve that penalty; and there is no justification [p871] except our own predeliction for converting a statistical rarity of occurrence into an absolute constitutional ban. One must surely fear that, now that the Court has taken the first step of requiring individualized consideration in capital cases, today's decision begins a second stage of converting into constitutional rules the general results of that individuation. One could readily run the same statistical argument with respect to other classes of defendants. Between 1930 and 1955, for example, 30 women were executed in the United States. Only three were executed between then and 1986—and none in the 22-year period between 1962 and 1984. Proportionately, the drop is as impressive as that which the plurality points to in 15-year-old executions. (From 30 in 25 years to 3 in the next 31 years, versus from 18 in 50 years to potentially 1—the present defendant—in the next 40 years.) Surely the conclusion is not that it is unconstitutional to impose capital punishment upon a woman.

If one believes that the data the plurality relies upon are effective to establish, with the requisite degree of certainty, a constitutional consensus in this society that no person can [p872] ever be executed for a crime committed under the age of 16, it is difficult to see why the same judgment should not extend to crimes committed under the age of 17, or of 18. The frequency of such executions shows an almost equivalent drop in recent years, id., at 191–208; and of the 18 States that have enacted age limits upon capital punishment, only 3 have selected the age of 16, only 4 the age of 17, and all the rest the age of 18, ante, at 829, n. 29. It seems plain to me, in other words, that there is no clear line here, which suggests that the plurality is inappropriately acting in a legislative rather than a judicial capacity. Doubtless at some age a line does exist—as it has always existed in the common law, see supra, at 864—below which a juvenile can never be considered fully responsible for murder. The evidence that the views of our society, so steadfast and so uniform that they have become part of the agreed-upon laws that we live by, regard that absolute age to be 16 is nonexistent.

B
Having avoided any attempt to justify its holding on the basis of the original understanding of what was "cruel and unusual punishment," and having utterly failed in justifying its holding on the basis of "evolving standards of decency" evidenced by "the work product of state legislatures and sentencing juries," ante, at 822, the plurality proceeds, in Part V of the opinion, to set forth its views regarding the desirability of ever imposing capital punishment for a murder committed by a 15-year-old. That discussion begins with the recitation of propositions upon which there is "broad agreement" within our society, namely, that "punishment should be directly related to the personal culpability of the criminal defendant," and that "adolescents as a class are less mature and responsible than adults." Ante, at 834. It soon proceeds, however, to the conclusion that "[g]iven the lesser culpability of the juvenile offender, the teenager's capacity for growth, and society's fiduciary obligations to its children," none of the [p873] rationales for the death penalty can apply to the execution of a 15-year-old criminal, so that it is "'nothing more than the purposeless and needless imposition of pain and suffering."' Ante, at 838, quoting Coker v. Georgia, 433 U.S., at 592. On this, as we have seen, there is assuredly not general agreement. Nonetheless, the plurality would make it one of the fundamental laws governing our society solely because it has an "'abiding conviction'" that it is so, ante, at 833, n. 40, quoting Coker v. Georgia, supra, at 598.

This is in accord with the proposition set out at the beginning of the plurality's discussion in Part V, that "'[a]lthough the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty."' Ante, at 833, quoting Enmund  v. Florida, 458 U.S., at 797. I reject that proposition in the sense intended here. It is assuredly "for us ultimately to judge" what the Eighth Amendment permits, but that means it is for us to judge whether certain punishments are forbidden because, despite what the current society thinks, they were forbidden under the original understanding of "cruel and unusual," cf. Brown v. Board of Education, 347 U.S. 483 (1954); or because they come within current understanding of what is "cruel and unusual," because of the "evolving standards of decency" of our national society; but not because they are out of accord with the perceptions of decency, or of penology, or of mercy, entertained—or strongly entertained, or even held as an "abiding conviction" by a majority of the small and unrepresentative segment of our society that sits on this Court. On its face, the phrase "cruel and unusual punishments" limits the evolving standards appropriate for our consideration to those entertained by the society rather than those dictated by our personal consciences.

Because I think the views of this Court on the policy questions discussed in Part V of the plurality opinion to be irrelevant, I make no attempt to refute them. It suffices to say [p874] that there is another point of view, suggested in the following passage written by our esteemed former colleague Justice Powell, whose views the plurality several times invokes for support, ante, at 823–825, 834:

""Minors who become embroiled with the law range from the very young up to those on the brink of majority. Some of the older minors become fully 'street-wise,' hardened criminals, deserving no greater consideration than that properly accorded all persons suspected of crime." Fare v. Michael C., 442 U.S. 707, 734, n. 4 (1979) (dissenting opinion)."

The view that it is possible for a 15-year-old to come within this category uncontestably prevailed when the Eighth and Fourteenth Amendments were adopted, and, judging from the actions of the society's democratically elected representatives, still persuades a substantial segment of the people whose "evolving standards of decency" we have been appointed to discern rather than decree. It is not necessary, as the plurality's opinion suggests, that "we [be] persuaded," ante, at 838, of the correctness of the people's views.

III
If I understand J O'C'S separate concurrence correctly, it agrees (1) that we have no constitutional authority to set aside this death penalty unless we can find it contrary to a firm national consensus that persons younger than 16 at the time of their crime cannot be executed, and (2) that we cannot make such a finding. It does not, however, reach the seemingly inevitable conclusion that (3) we therefore have no constitutional authority to set aside this death penalty. Rather, it proceeds (in Part II) to state that since (a) we have treated the death penalty "differently from all other punishments," ante, at 856, imposing special procedural and substantive protections not required in other contexts, and (b) although we cannot actually find any national consensus forbidding execution for crimes committed under 16, there [p875] may perhaps be such a consensus, therefore (c) the Oklahoma statutes plainly authorizing the present execution by treating 15-year-old felons (after individuated findings) as adults, and authorizing execution of adults, are not adequate, and what is needed is a statute explicitly stating that "15-year-olds can be guilty of capital crimes."

First, of course, I do not agree with (b)—that there is any doubt about the nonexistence of a national consensus. The concurrence produces the doubt only by arbitrarily refusing to believe that what the laws of the Federal Government and 19 States clearly provide for represents a "considered judgment." Ante, at 852. Second, I do not see how (c) follows from (b)—how the problem of doubt about whether what the Oklahoma laws permit is contrary to a firm national consensus and therefore unconstitutional is solved by making absolutely sure that the citizens of Oklahoma really want to take this unconstitutional action. And finally, I do not see how the procedural and substantive protections referred to in (a) provide any precedent for what is done in (c). Those special protections for capital cases, such as the prohibition of unguided discretion, Gregg v. Georgia, 428 U.S. 153, 176–196 (1976) (joint opinion) (Stewart, Powell, and S, JJ.) and the prohibition of automatic death sentences for certain crimes, Woodson v. North Carolina, 428 U.S., at 289–301 (plurality opinion) (Stewart, Powell, and S, JJ.), were not drawn from a hat, but were thought to be (once again) what a national consensus required. I am unaware of any national consensus, and the concurrence does not suggest the existence of any, that the death penalty for felons under 16 can only be imposed by a single statute that explicitly addresses that subject. Thus, part (c) of the concurrence's argument, its conclusion, could be replaced with almost anything. There is no more basis for imposing the particular procedural protection it announces than there is for imposing a requirement that the death penalty for felons under 16 be adopted by a two-thirds vote of each house of the [p876] state legislature, or by referendum, or by bills printed in 10- point type. I am also left in some doubt whether this new requirement will be lifted (since its supposed rationale would disappear) when enough States have complied with it to render the nonexistence of a national consensus against such executions no longer doubtful; or only when enough States have done so to demonstrate that there is a national consensus in favor of such executions; or never.

It could not possibly be the concurrence's concern that this death sentence is a fluke-a punishment not really contemplated by Oklahoma law but produced as an accidental result of its interlocking statutes governing capital punishment and the age for treating juveniles as adults. The statutes, and their consequences, are quite clear. The present case, moreover, is of such prominence that it has received extensive coverage not only in the Oklahoma press but nationally. It would not even have been necessary for the Oklahoma Legislature to act in order to remedy the miscarriage of its intent, if that is what this sentence was. The Governor of Oklahoma, who can certainly recognize a frustration of the will of the citizens of Oklahoma more readily than we, would certainly have used his pardon power if there was some mistake here. What the concurrence proposes is obviously designed to nullify rather than effectuate the will of the people of Oklahoma, even though the concurrence cannot find that will to be unconstitutional.

What the concurrence proposes is also designed, of course, to make it more difficult for all States to enact legislation resulting in capital punishment for murderers under 16 when they committed their crimes. It is difficult to pass a law saying explicitly "15-year-olds can be executed," just as it would be difficult to pass a law saying explicitly "blind people can be executed," or "white-haired grandmothers can be executed," or "mothers of two-year-olds can be executed." But I know of no authority whatever for our specifying the precise form that state legislation must take, as opposed to its constitu- [p877] tionally required content. We have in the past studiously avoided that sort of interference in the States' legislative processes, the heart of their sovereignty. Placing restraints upon the manner in which the States make their laws, in order to give 15-year-old criminals special protection against capital punishment, may well be a good idea, as perhaps is the abolition of capital punishment entirely. It is not, however, an idea it is ours to impose. Thus, while the concurrence purports to be adopting an approach more respectful of States' rights than the plurality, in principle it seems to me much more disdainful. It says to those jurisdictions that have laws like Oklahoma's: We cannot really say that what you are doing is contrary to national consensus and therefore unconstitutional, but since we are not entirely sure you must in the future legislate in the manner that we say.

In my view the concurrence also does not fulfill its promise of arriving at a more "narrow conclusion" than the plurality, and avoiding an "unnecessarily broad" constitutional holding. Ante, at 858. To the contrary, I think it hoists on to the deck of our Eighth Amendment jurisprudence the loose cannon of a brand new principle. If the concurrence's view were adopted, henceforth a finding of national consensus would no longer be required to invalidate state action in the area of capital punishment. All that would be needed is uncertainty regarding the existence of a national consensus, whereupon various protective requirements could be imposed, even to the point of specifying the process of legislation. If 15-year-olds must be explicitly named in capital statutes, why not those of extremely low intelligence, or those over 75, or any number of other appealing groups as to which the existence of a national consensus regarding capital punishment may be in doubt for the same reason the concurrence finds it in doubt here, viz., because they are not specifically named in the capital statutes? Moreover, the motto that "death is different" would no longer mean that the firm view of our society demands that it be treated differently in certain identifiable re- [p878] spects, but rather that this Court can attach to it whatever limitations seem appropriate. I reject that approach, and would prefer to it even the misdescription of what constitutes a national consensus favored by the plurality. The concurrence's approach is a Solomonic solution to the problem of how to prevent execution in the present case while at the same time not holding that the execution of those under 16 when they commit murder is categorically unconstitutional. Solomon, however, was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system.

IV
Since I find Thompson's age inadequate grounds for vacating his sentence, I must reach the question whether the Constitution was violated by permitting the jury to consider in the sentencing stage the color photographs of Charles Keene's body. Thompson contends that this rendered his sentencing proceeding so unfair as to deny him due process of law.

The photographs in question, showing gunshot wounds in the head and chest, and knife slashes in the throat, chest and abdomen, were certainly probative of the aggravating circumstance that the crime was "especially heinous, atrocious, or cruel." The only issue, therefore, is whether they were unduly inflammatory. We have never before held that the excessively inflammatory character of concededly relevant evidence can form the basis for a constitutional attack, and I would decline to do so in this case. If there is a point at which inflammatoriness so plainly exceeds evidentiary worth as to violate the federal Constitution, it has not been reached here. The balancing of relevance and prejudice is generally a state evidentiary issue, which we do not sit to review. Lisenba v. California, 314 U.S. 219, 227–228 (1941).

For the foregoing reasons, I respectfully dissent from the judgment of the Court.