Experts Discuss the Legacy of Roper v. Simmons

Anne Holsinger 00:01 

Hello and welcome to 1201 the death penalty in Context. I’m Anne Holsinger, managing director of the Death Penalty Information Center. Our guests today are Frank Baumgartner, Craig Haney, and DPI staff attorney Leah Romer. Professor Baumgartner is the Richard J. Richardson Distinguished professor in the Political Science Department at UNC Chapel Hill, where his work focuses on public policy and the death penalty. Professor Haney is a distinguished professor in the Psychology Department at UC Santa Cruz, where his work focuses on the intersection of law and psychology. Professors Baumgartner and Haney, along with fellow researcher Karen Steele, collaborated on a 2023 study which discusses the legal context and rationale the US Supreme Court used in Roper v. Simmons in 2005 when it barred the death penalty for juveniles under age 18. They draw on psychological research and sentencing data to argue that the Court should adopt the American Psychological Association’s recommendation to extend Roper to those ages 18 to 20. Ms. Roemer is a major contributor to DPI’s new report, “Immature Minds in a Maturing Society, Roper v. Simmons at 20”, which examines the legacy of Roper v. Simmons and the legal and scientific landscape surrounding the use of the death penalty for young adults ages 18 to 20. Thank you all for joining us today. 

I want to start with a question for Craig. Could you explain to our listeners what the Court decided in Roper and why you think this decision was significant? Why did you go on to choose to study 18- to 20-year-olds in the context of Roper? 

Craig Haney 01:35 

So, Roper is an interesting decision in that it is one of, in my opinion, the rare cases in which the United States Supreme Court has looked at, or at least taken explicitly into account, existing psychological research. So, the Court’s inquiry in Roper involved an analysis of basically two kinds of data. The first kind of data is data that they look at oftentimes when considering challenges to the death penalty, and that is indices of so-called evolving standards of decency, which they take to be largely legislative enactments and the behavior of capital jurors. And that was a consideration in Roper as well. So, among the basis that they cite for the opinion is the fact that there appears in their opinion to be a trend away from using the death penalty for juveniles. Both legislatures have abandoned it and capital juries rarely impose it. But then they turned their attention to something else that was of special interest to psychologists who do research on these issues. 

They looked at research that had been developed since their earlier opinion on this issue about 15 years earlier in a case called Stanford, where they set the minimum at 16 rather than 18. Research done since then has shown psychological research that the court cited that the developing brain is still in process of development past the age of 16. And that there was good reason, good scientific reason to believe that for various reasons, a group of juveniles 18 and younger could not be defined as among the most culpable. And what they pointed to were really three things, three conclusions from neurological and neuropsychological research that juveniles were less responsible. So, persons under the age of 18, based both on neurological research and developmental research, are less responsible than others and therefore more likely to make impulsive decisions as compared to adults. In addition to that, they’re less stable and so more likely to be influenced by surrounding circumstances than adults. And third and finally that they have less fixed personalities and are therefore more susceptible to character change, to rehabilitation, if you will, over time as compared to adults because they have less stable personalities. 

And using these three conclusions from neurobiological and neurodevelopmental research, they concluded, the court concluded that as a group, persons under the age of 18 could not under any circumstances be considered among the most culpable and therefore susceptible to, were placed at risk of receiving the death penalty. An important decision, categorical exclusion. So not something that jurors or prosecutors were allowed to take into account on a case-by-case basis. But the court decided that the cutoff for exposing someone to the death penalty or making them eligible to receive the death penalty was now going to be set at 18 or younger, rather than the earlier cutoff that had been set in the earlier case of 16. Important because it took into account neuropsychological and neurodevelopmental research, which interestingly enough continued after, after the Roper decision. 

So, Roper’s decided in 2005. And neuropsychologists, developmental psychologists, et cetera, continue to study the developing brain and the process of maturation, coming to conclusions that really argued for the extension of Roper to an even older group of people, sometimes called emerging adults or sometimes called the late adolescent class. 18-, 19- and 20-year-olds, it turns out, from a neurobiological and neurodevelopmental perspective, are still very much in the process of maturation, indistinguishable essentially from 16-, 17- and 18-year-olds. And so, this led the American Psychological association to propose a resolution that the Roper exclusion be extended to this slightly older group of people, that is to say 18-, 19- and 20-year-olds, based on developments in neuropsychological and neurodevelopmental research. 

Anne Holsinger 06:15 

Could you elaborate a little bit more about that psychological research, the neurodevelopmental research you talked about? We know now that much of this science shows that brain development continues into a person’s twenties. Could you explain how emerging adult brains differ from those of older adults and how that specifically affects decision making? 

Craig Haney 06:34 

Sure. Well, the structure and the function of the functional capacity of the brain is in process throughout the life course, but it is especially in process during teenage years when various areas of the brain are still in the process of developing and where, perhaps equally important, the neurocircuits and the connectivity between different parts of the brain are still very much in the process of maturation. The neuropsychologists who study this very carefully have basically found that this process continues apace, not only in the teenage years, but really into people’s 20s. I mean, there’s actually research that shows that this process is ongoing even into people’s early twenties. Position taken by the American Psychological Association, I think, was the conservative view here, basically focusing on research about which there was little or no question, that is to say that 18-, 19- and 20-year-old brains are still very much in the process of developing. The actual nature of the sites of the brain are in the process of maturation and change, and as I said a moment ago, the interconnections between the various parts of the brain which govern things like what’s sometimes called executive function, decision making capacity, ability to anticipate future consequences, et cetera, all of the sorts of things that we take into consideration when we try to decide the issue of culpability. All of those things are very much in process well into someone’s early 20s, such that people who are in the process of development are simply not as capable as adults are in making those kinds of decisions and anticipating the consequences of their actions. 

Anne Holsinger 08:27 

Thank you. I’d like to move to a question for Frank. In the article that you and Craig wrote, you mentioned the evolving standards of decency as part of the Court’s analysis in Roper. Could you define this concept and tell us a little bit about how the Court applies it? 

Frank Baumgartner 08:45 

I can certainly follow up on Craig’s comments about that. The concept of evolving standards of decency was first mentioned by the Court, as far as I know, in 1910 in a case called Weems versus the United States. And in that case, they said that the Eighth Amendment, so that’s against prohibiting cruel and unusual punishments, is not fastened to an absolute, but may require acquire meaning as public opinion becomes enlightened by humane justice. And they followed up on that in the 1950s. In 1958, in another case, they mentioned that the 8th Amendment draws its meaning from evolving standards of decency that mark the progress of a maturing society. So those are quite venerable precedents for the Court, going all the way back to the turn of the 20th century almost. And they played a really fundamental role in Roper and also in Atkins, which was in Atkins v. Virginia, which was their declaration that the death penalty could not be applied for people who had intellectual disabilities. 

That was 2002, and Roper was in 2005. Course. And in both those cases, the Court had not that long before ruled in the exact opposite direction. For example, In Atkins in 2002, they had previously ruled that it was okay to execute people with disability intellectual disabilities as recently as 1989. So what happened in between 1989 and 2002? For the Atkins case, it’s similar to what Craig just described for Roper: they looked at state legislature, state legislatures that had enacted laws on the topic, scientific understandings of the nature of intellectual disability, and the actual number of people with those disabilities who had been sentenced to death. So they changed their opinion 180 degrees in just 13 years. And in Roper, we saw something very similar. They had ruled in 1989 that it was okay to execute people age 16 and 17, and it had only been the year before that they had moved it up from 15 to 16 in Thompson v. Oklahoma in 1988. So, if it’s okay to execute people who are juveniles in 1989, why was it not so in 2005? And like Craig described, they looked at a number of things, I would mention among the others, that, that, that Craig did mention also, they mentioned the direction of legislative action, not just the absolute number of states that allow it or that actually carry it out, but whether it’s moving in the direction away from use or towards use. And those who were in the dissent were very strongly opposed to this idea because they pointed out that a majority of states still allowed the execution of people who were under the age of 18, although the majority placed their emphasis on the fact that among those states that had changed their laws, they had all moved in the same direction. So they were looking at the trend, not the absolute number. So there is some controversy about the use of evolving standards. But the court has used it in these two really important ways, and they’re looking at the direction of societal movement on the issue, and they look at quite a wide range of things. Actual use, legislative actions, and scientific consensus. 

Anne Holsinger 12:20 

Leah, what did you find when you examined capital punishment trends in this context of the evolving standards of decency? 

Leah Roemer 12:28 

Yeah. So as Craig and Frank mentioned, when the Court evaluates whether a particular punishment has become cruel and unusual under the 8th amendment by looking to what society thinks today, the Court reviews legislative developments, but also places a strong emphasis on actual sentencing practices. So, the justices have said that a key indicator of society’s views on a particular punishment is the infrequency of its use, even where it remains on the books. So, with that in mind for our report, we were curious to look at trends in actual sentencing and execution practices regarding 18- to 20-year-olds since Roper. So taking everybody who has been sentenced to death and executed in the past 20 years and calculating their age at the time of their crime and evaluating how different jurisdictions across the country are treating those individuals, and we found that even though young people in that age group under 21 remain eligible for the death penalty throughout the country, new death sentences for that group have declined significantly and in fact, almost vanished in the past 20 years. I’ll go into a little bit more detail in some examples. In the five years after Roper, for example, there were 92 total death sentences for people under 21. So that came out to about 18 per year. But in the past five years since 2020, there have only been five death sentences for this age group total. So in other words, only about one person between the ages of 18 to 21 at the time of their crime is receiving a death sentence each year in the United States. And if you look at the people sentenced to death for the first time since Roper, that’s about 150 people total. About 30% of them have already been removed from death row because their sentences were overturned or commuted. In other words, a court decided that death was not the appropriate punishment for that young person. And that means, you know, as a result, there are fewer than 100 people on death row today who were sentenced in the past 20 years for a crime they committed under age 21. And of all the people remaining on death row who were under 21 at the time of their crime, 70% were sentenced before Roper. So, the presence of this, of this age group, people who are under age 21, as a proportion of people under active death sentence of people on death row today, it’s really a legacy of the era prior to Roper. And the court has also looked at geographic concentration of a practice to assess whether society as a whole supports that punishment. And we did as well we looked at geographic concentration in the past 20 years, and we found that around the time of Roper and in the first five years after Roper was decided, 22 jurisdictions, that’s 21 states, plus the federal government sentenced someone under age 21 at the time of their crime to death. So, it’s a little under half, but it’s certainly a significant number of jurisdictions. But in the past five years, only three states total have done so. And California accounts for 60% of the new cases. 

So, there’s a very sort of visible winnowing of the group of jurisdictions that are actually sentencing people to death who were under 21 at the time of their crime. And we also looked at the county level geographic concentration and found that in the past five years, only four counties in the entire country have sentenced someone in this age range to death. And there are over 3,000 counties in the United States. So that’s 1/10 of 1% of all counties nationwide. And we also found that executions are declining for this age group, even though executions tend to lag death sentences as an indicator of society’s views, you can see executions, depending, declining over time. So, to summarize all of that, I know that was a lot of information. We found that this practice of sentencing people aged 18, 19, or 20 at the time of their crime to death has declined to the point that only one jury a year is sentencing a person to death from this age group and this practice is becoming increasingly isolated geographically. 

Anne Holsinger 16:40 

Thank you, Leah. There’s a concept, Craig, that I think would be helpful to provide some context for what Leah just talked about. And this is something that you touch on in your study, and that’s the age crime curve or the desistance curve, which is one of criminology’s most reliable findings. Could you explain this phenomenon and particularly its significance for defendants facing capital punishment? 

Craig Haney 17:03 

Well, it’s fortunately relatively commonsensical. Like so many things that are relatively commonsensical, we ideally have a lot of data to support it. And this is the notion that as people age and mature, they age out of criminal behavior. Some of it, I think, speaks directly to what we’ve been discussing, that people are maturing both developmentally as well as neurologically as they move through their teenage and into their young adult years. But in terms of criminal behavior, that’s actually very well documented, that there is a really clear desistance in criminal behavior that begins to take place in late teens and early 20s and continues unabated, on average, of course, over the life course. This is both in terms of criminal behavior that people engage in in free society, and it’s mirrored also in terms of adjustment to incarceration. So similar kinds of data curves have been generated for people who are incarcerated, where you’re looking not at criminal behavior per se, but rather at things like disciplinary infractions in prison. 

So all of the things being equal, on average, the best-behaved prisoners are people who have been incarcerated and are aging during that period of time. I mean, I think again, the common sense part of it is that not only is there neurological development, but people emotionally mature and that rash actions that they might have taken when they were younger, they have the wisdom not to take what they’re older and they form. I think the other component to this is they tend to form deeper relationships with people as they mature, and those deeper relationships contribute to the desistance from criminal and other forms of problematic behavior. 

Anne Holsinger 18:56 

Thanks for that explanation. I think that’s really important context for the findings that Leah shared, because we’re looking at a group that is actually more likely to commit crimes, and yet we’re seeing this trend that they are less and less likely to face a death sentence. So I think that’s an important point to note there. Leah, could you talk about any of the findings from DPI’s report that support the notion that young people age out of crime? 

Leah Roemer 19:24 

Yes, absolutely. So, one of the things we were interested in investigating was whether the characteristics of capital crimes committed by 18- to 20-year-olds were different from the capital crimes committed by older adults. And we decided to look at people executed in Texas in the past 20 years because Texas has conducted by far the most executions in the modern era and also maintains a very easily navigable public database of descriptions of the crimes committed by people executed in the state. And so, we looked at this group and we tracked whether each person executed had had any codefendants, so if they committed the crime alongside anyone else, and whether robbery featured as a part of their crime. And we found that people executed for crimes committed under age 21 were about twice as likely for both of those factors, twice as likely to have a codefendant and twice as likely to commit robbery as a part of their crime. And, you know, these weren’t close numbers. About 2/3 of young people had codefendants compared to one third of adults. 

And about three quarters of young people’s crimes involved robbery compared to just over one third of adults. Adults. And this is significant because, as Craig and Frank have discussed, you know, one of the reasons the supreme court barred the death penalty for juveniles in Roper is because Scientific research on cognition and human development established that juveniles are less culpable for crimes. The court recognized that they’re more susceptible to peer pressure and they have poor judgment and impulse control. And more recent research confirms that 18- to 20-year-old brains have these same characteristics. So, our Texas research showed us that people aged 18 to 20 are much more likely to be executed for crimes that occurred in a peer setting and started with a robbery motive. A common fact pattern we saw was that a group of teenage boys decided to rob a convenience store and someone panicked and shot the cashier or a customer. And these are the types of crimes that people tend to age out of. Crimes involving peer pressure, impulsivity, bad, bad judgment, poor long-term planning. And in most other states, these are the types of crimes that would not have received the death penalty. But these young people were ultimately executed in Texas. And on the other hand, the older people executed in Texas seemed much more likely to plan and commit a murder alone rather than kill someone as a result of poor judgment during a heated situation. So that’s where I think you see the age crime curve being really evident, that these young people who were ultimately sentenced to death, they sort of were more susceptible to these heated situations that led their judgment to become impaired. 

Anne Holsinger 22:06 

Frank, your analysis of death sentencing data from 1972 to 2021 revealed some striking racial disparities. Could you walk us through the most significant findings regarding race and age in death penalty cases? 

Frank Baumgartner 22:19 

Sure, I’d be glad to. It’s really quite simple. And I’ll just describe really two things. The overall analysis from 1972 to 2021, which was the data we had at the time of the study, I can tell you it hasn’t changed much since 2021, so it’s still pretty up to date. And then we’ll look separately at the period after Roper. So, if we look at the overall period among the people who were adults at the time of their crime, 48% were Caucasian, so 52% were people of color. In the late adolescent class group, the 18- to 20-year-olds, only 34% were white. 

So that means that 66% were black or brown, Hispanic and people of color. And among those people who were under the age of 18, this is before Roper, 33% were white, and so 67% were people of color. So already at the time, considering the entire historical period, there’s quite a overrepresentation of Black and Brown people among the younger age cohorts. When we look at the period just since Roper of Course, there’s no cases of people below 18 because that was excluded by the Supreme Court. But among those in the late adolescent class aged 18 to 20, only 20% are white. 80% are people of color. And among those who are over age 21, so adults, 44% are white. So, 56% are people of color. So that last statistic, only 20% of the late adolescent class individuals sentenced to death since Roper being white, and so 80% being people of color, that’s really the most striking evidence about the impact of race on what we call adultification. 

Anne Holsinger 24:21 

Leah, could you talk a little bit about DPI’s analysis, which focused on death sentences and executions in the post Roper period? So the last 20 years, as well as the current death row population, did you find racial disparities by age in your research? 

Leah Roemer 24:36 

So, in California, which is the national leader in the modern era in death sentences, 90% of people sentenced to death from this age group in the past 20 years were people of color. And in Oklahoma, another leader in death sentences, it was 86%. And it was 83%. In North Carolina, which is notable in part, too, because there is a mass set of legal claims where people on death row, over 100 people in North Carolina are challenging their sentences under the state’s Racial justice act, saying that racism infected their sentences. We also found three jurisdictions where every person executed from this age group was a person of color. And those were Arkansas, South Carolina, and the federal government, actually. And looking at death row as well, we saw these. These disproportionate rates of people of color who’d been sentenced to death in this age group. But in Texas, we actually found that 94% of people currently on death row for crimes committed under age 21, that’s 30 out of 32 people, are people of color. There are only two white people on death row in Texas for crimes committed in this age compared to 30 people of color. Another angle where racial bias is visible is when you compare the average age at crime for people sentenced to death in a state by race. Overall, we found that there is a five-year gap across the nation. White people sentenced to death in the past 20 years were about 34 and a half years old on average, while people of color were about 29 and a half years old on average. So, there’s that five-year gap, but some states have a much larger gap—the largest being 15 years in Kentucky. White people in Kentucky are 39 on average when they’re sentenced to death, while people of color are just 24. Other states with large age gaps based on race include North Carolina, which is about a nine year gap. Nevada, Tennessee, Missouri, South Carolina and the federal government are all 7-8-year gap between average age for people of color sentenced to death and white people sentenced to death. 

Anne Holsinger 27:21 

Craig, what are some of the factors that you think explain this racial disproportionality in this age group? 

Craig Haney 27:28 

Well, Frank mentioned earlier the term adultification, and I think one clear explanation, not the only one, but one clear explanation, is the tendency of white people in particular to adultify young people of color, that is to perceive them as older than they are and therefore more responsible and culpable than they are. So if we translate that into what we’ve been discussing, that would be a tendency of white decision makers in the criminal legal system, of whom there are many looking at cases with persons of color as potential defendants and seeing those defendants as older and more responsible than a comparable white of the same age. And I think that that kind of adultification and tendency to add to the culpability of defendants of color I think continues not just in terms of charging decisions, but perhaps also continues into the trial process. You know, we’ve been talking about the outcomes of death penalty cases, and as everybody in this podcast knows, those outcomes are the product of a series of decisions that maybe start with the police and prosecutors, but then continue into the into the courtroom in cases where their actual death sentence is meted out. And there we’re dealing with stereotypes and potential prejudices of jurors who also are likely to adultify defendants of color, see them as more as older, but also as more responsible. And you know, some of the things that Mona Lynch and I have found in our research is that not only are defendants of color seen as older than they chronologically are, but jurors after the process of death qualification has oftentimes called out many jurors of color. Jurors have a more difficult time perceiving and applying mitigating circumstances to defendants of color. So I’m speculating here because we, you know, we, Frank and I have analyzed the outcome data, but I’m speculating based on my own trial experience that I think at times what happens is that jurors are less willing to take into account the mitigating circumstance of age or youth, as it were, in the case of defendants of color, because they don’t see them as that young. They see them as chronologically as older than they chronologically are and therefore hold them more accountable. So, what might be a mitigating circumstance in the case of a white defendant—youthfulness—is not as powerful in the case of a defendant of color of the same age. I mean, Lynch and I have found also that other kinds of mitigating factors that are typically brought to bear in capital cases are not regarded as sympathetically or as mitigating in effect, for defendants of color as they are for whites. So that also may play a role in explaining some of these data. 

Anne Holsinger 30:38 

I’d like to close with a question for all of you. Are there any cases that jump out to you as key examples of this inconsistent treatment or cases that you would like to highlight that show people in this age group behaving similarly to juveniles? 

Craig Haney 30:54 

Well, I don’t know if we have enough time. You know, this is a common pattern. I do research on the death penalty, but also work a lot on capital cases, and a lot of those cases in California, and you heard the statistics cited earlier, that California is one of the places where this kind of disparity that Frank and I studied has been most glaring. I think many of us who, especially if you work with death penalty clients in habeas proceedings, where you’re encountering them later in life when the age crime desistance curve has begun to take in effect, you look at actions that they engaged in when they were very young, some of them in their late teenage years or early twenties, and you encounter a person who is an entirely different, much more mature person. Thinking of the most extraordinary example for me as a man who was a death penalty client of mine many years ago. I worked on his trial, unfortunately, we were unsuccessful. He was committed and sentenced to death, a man named Jarvis J. Masters was sent to San Quentin in his late teenage years for a series of crimes that he committed when he was young, immature, impulsive, impetuous, and went to San Quentin and was accused of and convicted of a crime, sentenced to death. Jarvis now, years later, is an author, a published author, writes books, is a Buddhist, writes poetry, is a completely different person from the person he was when he was on the streets as a teenager. And I think this is a pattern that a lot of us encounter all too often. Of course, the death penalty fixes someone in time. One of the things that is so problematic about it is that it does not allow for change and redemption. And so, you know, the pattern that I just described is a pattern that many of us encounter all too often with our clients who are being held accountable for something that they may or may not have done when they were quite young, and they have now matured, matured into somebody very different. And yet, sadly, many of them still sit on death row. 

Frank Baumgartner 33:05 

I could add something that’s not a story about a client or an individual case, but we haven’t mentioned here that the FBI does gather data about the age of homicide offenders. And so, you can compare homicides with death cases and calculate a rate at which people of different age groups who commit, who are homicide offenders are sentenced to death. And there is, in general, a significantly lower rate of sentencing people to death when they’re younger. And we might call that the general mitigating factor of youthfulness and that is considered an appropriate mitigating factor for juries to consider throughout the country in states with death sentences, with death sentences on the books. But if we think of that as a form of grace that the jury might grant to the defendant in front of them, that grace is not granted in a racially neutral manner. The rates for young men of color are lower than the rates for people who are age 25 to 30, for example, if they’re in the age range of 18 to 20, it’s a lower rate than if they’re in their late twenties, for example, but it’s not as low a rate as it is for the white defendant of that same age group. So there’s something about, I mean, people do understand youthfulness, but they don’t apply youthfulness equally as a mitigator when they’re looking at people of different races. So I think that’s really the crux of what we’re describing here. 

Leah Roemer 34:46 

I think Frank’s comments segue really well into a story that we highlighted in our report, which was that of Marion Bowman, who was executed in January in South Carolina. And he was the fifth person, 18 to 20 years old at the time of the crime, executed in South Carolina since Roper. And all five have been young black men. There’s no daylight between those statistics. There it is exclusively young black men who have been executed in this age range since Roper. And in that case, you really see how those potential racial biases crept in and how he may have been, you know, his youth was viewed differently, actually, by his own attorney. So his own attorney called him a man. He was 20 years old when he was arrested for the murder of a young woman who was white in connection with a drug dealing dispute and the woman was actually a year older than him—she was 21. But Mr. Bowman’s attorney referred to him as a man and referred to the victim as a, quote, little white girl. And there was also discussion of a potential sexual relationship between Mr. Bowman and the victim. And the attorney later admitted that he thought that that idea was dirty. And a juror also came out later to say that he thought that race played a role in the case, and he would not sentence Mr. Bowman to death if he was on the jury today. But all of this information came too late. And while he was only 20 years old, and maybe a white person would have been treated differently, that worked against him. And he was called a man and considered an adult, despite his brain development not being yet complete, according to experts who examined him. And as Craig was describing, you also see his actual behavior in prison after he was sentenced to death not reflecting this idea that he was incorrigible or that he wouldn’t change. So, one of the things that his attorneys highlighted in his later appeals were his nearly spotless prison record. He had also served as a liaison between prisoners and corrections staff, and the chief psychiatrist on death row in South Carolina called him possibly the most respected person on death row and said that he was a very different man than the boy who came in many years ago. So, you see that the people who interacted with him had observed this change, had observed him growing up, but he was ultimately executed a couple months ago. 

Anne Holsinger 37:12 

Thank you all for those compelling stories and for all of the research that you’ve shared with us. Is there anything else that any of you would like to share with our listeners? 

Frank Baumgartner 37:21 

I think it might be helpful simply to remind people about what was called in the 1990s at the peak of the fear of crime, the super predator craze, and how we were so fearful of these young men, and it was a very racialized portrayal of dangerous teenagers. And some of the things that were said by some of the criminologists and unfortunately, political scientists also at the time were quite frankly, embarrassing and so terribly racialized and full of fear that it’s really important to remember where this comes from. It comes from an irrational fear of teenagers run amok. And we recognize now that that was completely false, but we didn’t at the time. And it had a massive impact on our criminal justice system, including the common use of life without the possibility of parole for people who are children at the time. 

Craig Haney 38:24 

Yeah, to add on to that, I mean, it had. We’ve been talking about the death penalty, and I think Frank rightly alluded to the larger issue of the use of imprisonment and the racialized use of imprisonment. The era of mass incarceration was mass incarceration disproportionately imposed on certain racial groups and not others. And part of what fueled that was this sensationalizing and demonizing of certain groups of people, but particularly groups of young people. And I think the super predator mythology played a significant role in that. What, what most people assumed was being meant by super predators were super predators of young people of color who were depicted as terrorizing communities and so on and so forth and it helped fuel a lot of the worst aspects of our criminal legal system, I think, distorting the way in which we used the death penalty, but distorting also the way in which we used imprisonment and still do. 

Leah Roemer 39:31 

And those trends were definitely evident. To take Marianne Bowman as the example, again, he was sentenced to death in 2002 and we saw in our research that the people being executed today for crimes committed under age 21, those are people who were sentenced at the height of the panic over super predators and the just racialized rhetoric in the media and this essentially frenzy that ultimately did not pan out. But those people that are now being executed, they’re now middle aged, many of them with near flawless records in prison, and many of them have turned towards religion, have gotten academic degrees in prison, and so you see that these people who became examples of this supposed super predator trend in the late 1990s and early 2000s are the people being executed today where that, that evidence that they could not be rehabilitated just has not panned out. But because execution fixed the punishment at the moment in time, they’re still moving towards execution and are disproportionately people of color. 

Anne Holsinger 40:40 

Thank you all so much for joining us today. I would like to take a moment to note that DPI has just released a report on the legacy of Roper. It’s called Immature Minds in a Maturing Roper v. Simmons at 20. So, I would encourage our listeners to take a look at that and we have cited extensively to the excellent study that Frank and Craig and their colleague Karen Steele wrote on this topic. So, thank you so much for your work which really set the stage for this report that we’ve been able to put together. If our listeners would like to learn more about the death penalty, you can visit DPI’s website at deathpenaltyinfo.org to support the 12:01 podcast and all of DPI’s work, please visit deathpenaltyinfo.org/donate and to make sure you never miss an episode, Please subscribe to 12:01 in your podcast app of choice.