Thompson v. Oklahoma

Thompson's subsequent appeal reached the U.S. Supreme Court on 9 November 1987. Briefs were filed in support of the appeal by representatives of the Child Welfare League of America and the International Human Rights Law Group. Attorney Generals of 20 states supported Oklahoma with a brief asking that the judgement against Thompson be affirmed. The state of Oklahoma continued to insist that Thompson had met the criteria to be tried as an adult and should be punished as one, but this time Thompson's attorney's arguments were successful. On 29 June 1988, the Court vacated Thompson's death sentence and remanded his case back to Oklahoma's courts.

The Court's five-vote majority agreed that Thompson's sentence was inappropriate, but their reasoning varied. Justices Stevens, Marshall, Brennan, and Blackmun looked to state laws for a reflection of society's views on the issue. In the written opinion, Justice Stevens quoted the 1958 Trop v. Dulles decision, in which the Court looked for guidance to "evolving standards of decency that mark the progress of a maturing society." Stevens noted that 18 states had set the age of 16 as the minimum age for imposition of the death penalty. Furthermore, he noted that most Western societies and even some totalitarian states like the Soviet Union forbid the execution of juveniles.

Justice O'Connor agreed in a separate opinion that Thompson should not be executed, but disputed that his particular case should prove the existence of any national consensus on imposing the death sentence on minors. Although 18 state legislatures had barred seeking the death penalty against juveniles and another 14 states had completely dispensed with capital punishment, O'Connor pointed out that the federal government and 19 other states set no rules regarding age in statutes accepting death as a legitimate penalty.

Nevertheless, O'Connor accepted that a national consensus on the minimum age issue "very likely" did exist. Furthermore, O'Connor wrote that the absence of a minimum age statute in Oklahoma law showed a lack of necessary care and deliberation had been taken in drafting state statutes relating to the Eighth Amendment. She noted that laws authorizing capital punishment and providing that minors could be tried as adults had been passed separately by the Oklahoma legislature, as if no serious consideration had been given to the effect one law might have upon the other. Since Oklahoma lawmakers had apparently failed to consider such a possible interrelationship, O'Connor deferred to the "national consensus" that defendants under 16 should not be executed.

Justices Scalia, White, and Rehnquist rejected the idea that a consensus existed on the minimum age issue. In their dissent, Scalia wrote that the Court should not involve itself in setting a precedent in the minimum age issue unless the national consensus and the lack of judgemental maturity in juveniles alluded to by the majority could be established beyond any doubt in every case. Scalia wrote that the Eighth Amendment was not written to ban the execution of juveniles. In the majority opinion, Justice Stevens had cited statistics showing that no defendant under 16 had been executed in the U.S. in forty years and that juries had sentenced fewer than two dozen minors to death in the twentieth century. To Stevens, this implied a national consensus. To Scalia and the dissenters, it implied that juries took such cases so seriously that the death penalty was meted out to minors only when it was deserved.

The Thompson decision was a landmark in ongoing controversies over the death penalty and the administration of justice to youthful offenders. In 1997, Amnesty International listed the United States as one of only five nations, including Iraq, Pakistan, Yemen, and Saudi Arabia, which allow the execution of prisoners under the age of 18.