Laura Denvir Stith, Judge.

Christopher Simmons was sentenced to death for a murder he committed when he was 17 years old. He argues that to execute him for a crime committed when he was under 18 constitutes cruel and unusual punishment.

In Thompson v. Oklahoma , 487 U.S. 815 (1988), the Supreme Court of the United States held that it constituted cruel and unusual punishment to execute persons who were 15 years of age or younger at the time of their offense. The following year, in Stanford v. Kentucky , 492 U.S. 361 (1989), the Supreme Court held that there was not then a national consensus against the execution of those who were 16 or 17 years old at the time of their crimes and declined to bar such executions. On that same day, the Supreme Court held that there was not then a national consensus to bar the execution of those who were mentally retarded. Penry v. Lynaugh , 492 U.S. 302 (1989).

In 1993, Christopher Simmons murdered Shirley Crook. Because of Stanford , he did not argue that his age constituted a bar to imposition of the death penalty, although he did argue that his age was a mitigating circumstance. He was convicted of first-degree murder and sentenced to death in accordance with the jury's verdict. This Court affirmed his conviction and death sentence, as well as the denial of post-conviction relief. State v. Simmons , 944 S.W.2d 165 (Mo.banc 1997), cert. denied , 522 U.S. 953 (1997).

Last year, in Atkins v. Virginia , 536 U.S. 304 (2002), the Supreme Court held that a national consensus had emerged against the execution of mentally retarded offenders since Penry . Mr. Simmons now asks us to hold that a similar consensus against the execution of juveniles has developed since Stanford , that the rationale for the Supreme Court's determination that the execution of juveniles was not cruel and unusual punishment has disappeared, and that the Eighth Amendment bars his execution.

This Court agrees. Applying the approach taken in Atkins , this Court finds that, in the fourteen years since Stanford was decided, a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford , that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade. Accordingly, this Court finds the Supreme Court would today hold s uch executions are prohibited by the Eighth and Fourteenth Amendments. It therefore sets aside Mr. Simmons' death sentence and re-sentences him to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.

I. RETROACTIVE APPLICATION OF JUVENILE DEATH PENALTY

The state contends that this Court should not reach the substantive issue whether the execution of persons for crimes committed as juveniles is prohibited by the Eighth and Fourteenth Amendments, because Mr. Simmons is barred from raising it since he did not do so at the time of his trial. We reject this argument.

In Penry , before reaching the substantive issue whether the Eighth Amendment prohibited the execution of the mentally retarded, the Supreme Court considered whether a decision barring such executions would apply retroactively under the principles set out in Teague v. Lane , 489 U.S. 288 (1989). Penry answered the question in the affirmative, stating, "[T]he first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Id . at 330. The Supreme Court concluded:

Thus, if we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review.

Id. Penry went on to hold that no national consensus against the execution of the mentally retarded existed in 1989. But, Atkins found that such a consensus had developed by 2002 and that the Eighth Amendment "'places a substantive restriction on the State's power to take the life' of a mentally retarded offender." Atkins , 536 U.S. at 321, quoting , Ford v. Wainwright , 477 U.S. 399, 405 (1986). In Johnson v. State , 102 S.W.3d 535, 539-40 (Mo.banc 2003), this Court determined that Atkins applied retroactively. Accord Van Tran v. State , 66 S.W.3d 790, 811 (Tenn. 2001) (holding prior to Atkins that new rule barring execution of mentally retarded would be applied retroactively).

In parallel fashion, if, as a substantive matter, the Eighth Amendment prohibits the execution of persons under age 18 at the time of their offense regardless of the procedures followed, then such a rule would also fall under the first exception to nonretroactivity under Teague because it would deprive the state of the power to impose the punishment of death on such a person. Cf. Penry , 492 U.S. at 330 . Such a rule would therefore be applicable to persons, such as Mr. Simmons, whose cases are on collateral review, and the usual waiver rules will not apply. See also Reed v. Ross , 468 U.S. 1, 16 (1984) ("[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.").

II. NATIONAL CONSENSUS AGAINST EXECUTION OF JUVENILES AND THE MENTALLY RETARDED

To determine whether the application of the death penalty to juveniles constitutes cruel and unusual punishment, it is helpful to examine the Supreme Court's decisions in prior cases addressing the execution of juveniles and of the mentally retarded.

A. The Death Penalty for Juveniles: Thompson and Stanford .

1. Thompson v. Oklahoma . In Thompson , 487 U.S. 815 (1988), the Supreme Court determined that the Eighth Amendment categorically prohibits the execution of those who were 15 years old or younger at the time of their crimes. Using an approach similar to that which he would utilize in Atkins some fourteen years later, Justice Stevens, in the principal opinion, said that in determining what constitutes cruel and unusual punishment, judges should be "guided by the 'evolving standards of decency that mark the progress of a maturing society.'" Id. at 821, quoting , Trop v. Dulles , 356 U.S. 86, 101 (1958). Such standards cannot remain static, but must "'acquire meaning as public opinion becomes enlightened by humane justice,'" for "'a principle to be vital must be capable of wider application than the mischief which gives it birth.'" Id . at 821 n. 4, quoting , Weems v. United States , 217 U.S. 349, 373, 378 (1910).

To determine current standards of decency, Thompson examined: (a) relevant legislative enactments, and (b) evidence of how juries viewed the propriety of execution of the mentally retarded. It also considered (c) the views of respected national and international organizations. Finally, in light of the above and other factors, (d) the Supreme Court made its own judgment as to the propriety of such executions and explained "why these indicators of contemporary standards of decency confirm our judgment that such a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty." Thompson , 487 U.S . at 822 - 23.

a. Legislative Enactments. In reviewing statutes governing punishment of children, Thompson found that "[t]he line between childhood and adulthood is drawn in different ways by various States." Id. at 824. Fourteen state legislatures then barred capital punishment altogether. Id . at 826. In nineteen other states, the legislature permitted capital punishment, but state statutes failed to expressly state the minimum age for its imposition. Id . at 826-27. Eighteen remaining states set a minimum age, varying from 16 to 18. Id . at 829. No legislature had adopted a statute explicitly permitting the execution of those under age 16. Id. b. Imposition of the Death Penalty. Thompson also found that juries rarely imposed the death penalty on those under 16, that only eighteen to twenty such persons had been executed in the 20th century, and only one since 1948. Id . at 832. Between 1982 and 1986, only five persons age 15 or younger were sentenced to death in the United States, leading the Court to conclude that, "these five young offenders have received sentences that are 'cruel and unusual in the same way that being struck by lightning is cruel and unusual.'" Id. at 833, quoting , Furman v. Georgia , 408 U.S. 238, 309 (1972) (quoting Stewart, J., concurring).

c. National and International Views. As a part of its discussion of legislation, the Supreme Court considered the views of respected national religious, social, and professional organizations, including the American Bar Association ("ABA") and the American Law Institute, both of which it said "have formally expressed their opposition to the death penalty for juveniles." Id . at 830. And, stating that it had "previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual," id. at 830 n. 31 (citations omitted), the Court also considered the sentencing practices of European and other countries, stating:

Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.

Id. at 830-31 (footnote omitted).

d. Independent Analysis. Lastly, Thompson analyzed the culpability of juveniles as compared to adults and considered whether application of the death penalty to juveniles measurably contributed to the social purposes it was intended to serve. After noting "broad agreement on the proposition that adolescents as a class are less mature and responsible than adults" and "the special mitigating force of youth," the Court concluded that "less culpability should attach to a crime committed by a juvenile." Id. at 834-35. As to the social rationales of the death penalty — retribution and deterrence — it found them unacceptable for 15-year-old offenders because of the "lesser culpability of the juvenile offender" and because deterrence would not be jeopardized if the execution of those under 16 were prohibited. Id . at 836-37.

In light of all of these factors, Thompson concluded that a national consensus existed that execution of persons under 16 at the time of their crimes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Id. 2. Stanford v. Kentucky . The following year, in Stanford , 492 U.S. 361 , Justice Scalia stated in the principal opinion that, by contrast, the Eighth and Fourteenth Amendments did not prohibit imposition of the death penalty for crimes committed at age 16 or 17. Id. at 370-77. In so holding, Justice Scalia agreed that what constitutes cruel and unusual punishment must be determined by current standards rather than by those in effect in 1789. Id. But, he said, current standards are almost entirely to be determined by reference to "statutes passed by society's elected representatives," id. at 370, and specifically by state legislatures. He then noted that, while the majority of states did not permit the execution of juvenile offenders, that count included the fourteen states that then barred capital punishment altogether. Id. at 370 n. 2. If one considered only those states permitting capital punishment, then the majority of that subgrouping approved the execution of those who were 16 or 17 at the time of their offense. Id. at 370.

And, although Stanford recognized that juries sentence substantially fewer juveniles than adults to death, it said this did not provide a reason to prohibit such death sentences entirely. Id . at 373-74. Stanford also rejected, as irrelevant, the many state statutes barring those under 18 years old from engaging in various activities, such as voting, drinking, or driving. Id. at 374-77. Similarly, although a year earlier Thompson had said the views of social, professional, and religious groups, as well as the sentencing practices of other countries, were relevant to determining current standards of decency, Stanford stated that the views of national organizations were an "uncertain foundation" on which to base constitutional law and that international practices were simply irrelevant to whether a national consensus existed. Id. at 369 n. 1, 377. After so limiting its inquiry, Stanford concluded that there was no national consensus against executing offenders who were 16 or 17 at the time of the offense. Id. at 370-72, 379-80.

B. From Penry to Atkins : Development of a National Consensus Against Execution of the Mentally Retarded.

1. Penry v. Lynaugh . The same day that the Supreme Court held in Stanford that there was no national consensus against imposition of the death penalty on juveniles, it held in Penry , 492 U.S. 302 , an opinion authored by Justice O'Connor, that there was also no national consensus against imposition of the death penalty on the mentally retarded. Like Thompson and Stanford , Penry recognized that what constitutes cruel and unusual punishment is not a static concept, immutably tied to what punishments would have been included within the reach of the Eighth Amendment when the Bill of Rights was adopted in 1789. Id . at 330. Rather, the "prohibition against cruel and unusual punishments also recognizes the 'evolving standards of decency that mark the progress of a maturing society.'" Id. at 330-31, quoting , Trop , 356 U.S. at 101 . And, like Stanford , Penry looked to statutes passed by state legislatures as the best type of "objective evidence of how our society views a particular punishment today." Id . at 331. Penry also said that the Court "looked to the data concerning the actions of sentencing juries." Id . a. Legislative Action. When Penry was decided in 1989, only Georgia, Maryland, and the federal government had statutes barring the imposition of the death penalty on the mentally retarded. Id . at 334. The Supreme Court concluded that "the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus." Id. (emphasis added).

b. Other Factors. Mr. Penry was unable to provide evidence that juries chose not to sentence mentally retarded defendants to death. In addition, on the record before it, the Supreme Court said it could not conclude that "all mentally retarded people, by definition, can never act with the level of culpability associated with the death penalty." Id. at 338-39. For these reasons, the Court determined that "at present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment." Id. at 335.

2. Atkins v. Virginia . In 2002, the Supreme Court revisited the issue of capital punishment of the mentally retarded in the case of Daryl Atkins, an allegedly mentally retarded man whose death sentence had been affirmed by the Virginia Supreme Court based on Penry 's determination that there is no national consensus against the execution of the mentally retarded. In a principal opinion by Justice Stevens, the Supreme Court reversed Mr. Atkins' death sentence and remanded for a determination of his mental status. Atkins , 536 U.S. 304 . In so holding, Atkins reaffirmed that whether capital punishment is barred for certain classes of offenders is necessarily part of a fluid, rather than a static, process and that as our standards of decency evolve, so will the determination of what constitutes cruel and unusual punishment. Id. at 312.

Atkins ' analysis more closely resembles that in Thompson than that in Stanford . Atkins : (a) first looked at the objective evidence of legislative intent provided by state legislation barring the death penalty. (b) Like Penry , it considered the frequency with which the death penalty was imposed on the mentally retarded. (c) It then looked to the opinions of national professional, religious, and social organizations, and the approach of other countries to the death penalty for the mentally retarded. (d) Finally, it undertook an independent examination of whether the imposition of the death penalty on the mentally retarded constitutes cruel and unusual punishment under today's evolving standards of decency. Id. at 313.

a. Legislative Action. Atkins found that, in the thirteen years after Penry , fourteen more states — including Missouri — had adopted legislation barring the application of their death penalty laws to the mentally retarded. And, while New York and Nebraska had each reinstated the death penalty, each had specifically exempted the mentally retarded from the reach of those newly enacted statutes. Id . at 314-15. When these sixteen new states were added to the two states that had already adopted such legislation in 1989, eighteen states, and the federal government, then prohibited imposition of the death penalty on the mentally retarded. See id. In addition, the Court noted that the Texas legislature had unanimously adopted a bill barring the execution of the mentally retarded, but the bill was vetoed by the governor on other grounds, and that at least one house of the Virginia and Nevada legislatures had similarly adopted bills barring the death penalty for the mentally retarded. Id. at 315.

While the number of states barring imposition of the death penalty had clearly grown impressively, the Court stated that, "It is not so much the number of these States that is significant, but the consistency of the direction of change." Id. (footnote omitted) (emphasis added). This consistency was further reflected by the fact that, since Penry , no state had adopted a law permitting the execution of the mentally retarded. Id . at 315-16. The Court found such consistency particularly persuasive given the anticrime atmosphere of the times:

Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.

Id. b. Frequency of Imposition of Death Penalty. The Court found that some states, such as New Hampshire and New Jersey, whose statutes nominally authorize the execution of mentally retarded persons, had not carried out executions of any persons in decades, thus removing the incentive to pass legislation barring execution of the mentally retarded in particular. Id . at 316. And, in those states that still carried out executions, the Court found, the practice of executing mentally retarded offenders had become very uncommon: only five persons who were known to have an I.Q. of less than 70 had been executed in the thirteen years since Penry . Id . The Court concluded that "[t]he practice. . . has become truly unusual, and it is fair to say that a national consensus has developed against it." Id. c. National and International Opposition to Death Penalty. Atkins stated that the consensus against the death penalty for the mentally retarded was evident not only from the legislation passed over the prior thirteen years, and the rareness of the application of the death penalty in those states that permitted its use, but also from the opposition to the practice from experts in the field, noting "several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender," including the American Psychological Association and the American Association of Mental Retardation. Id . at 316 n. 21. The Court also found the sentiments of this nation's religious communities, and of the world community, to be overwhelmingly opposed to execution of the mentally retarded. Id. Finally, the Court cited to polling data that showed "a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong." Id. While the Court stated that the opposition of these groups was by no means dispositive, the Court did find significant their "consistency with the legislative evidence," stating that it provided "further support to [the Court's] conclusion that there is a consensus among those who have addressed the issue." Id. d. Independent Judicial Determination. Finally, the Supreme Court undertook an independent evaluation of whether such executions should be prohibited. It found that neither the retributive nor the deterrence justifications for the death penalty would be furthered by executing the mentally retarded, stating, "If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." Id . at 319. It further concluded, "the same cognitive and behavioral impairments that make [mentally retarded] defendants less morally culpable. . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." Id . at 320.

The Court further implicitly rejected the suggestion in Penry that the death penalty could not be barred if any mentally retarded person might theoretically deserve it, so that the effect of mental retardation should instead simply be considered as a mitigating factor. Id . at 318-19. Rather, it said, the very fact that persons are mentally retarded not only makes them more likely to give a false confession, but also makes them less able to assist their counsel, typically makes them poor witnesses, and may cause them to exhibit a demeanor that is unsympathetic and that may incorrectly imply a lack of remorse. Id. at 320-21. Its independent evaluation led the Court to conclude that "death is not a suitable punishment for a mentally retarded criminal." Id. at 321.

The state argues, and the dissenting judges would hold, that whatever the Supreme Court held in Atkins is irrelevant to the instant case because this Court is bound by Stanford to hold that there is no constitutional bar to the execution of persons who were 16 or 17 years of age at the time of their crimes. This argument ignores the fundamental premise on which Stanford , as well as Thompson , Penry , and Atkins , were based: that "this Court has not 'confined the prohibition embodied in the Eighth Amendment to 'barbarous' methods that were generally outlawed in the 18th century,' but instead has interpreted the Amendment 'in a flexible and dynamic manner.'" Stanford , 492 U.S. at 369, quoting , Gregg v. Georgia, 428 U.S. 153, 171 (1976). Courts should be guided by the conceptions of decency of "modern American society as a whole." Id. (footnote omitted).

Atkins recently reaffirmed that decisions as to standards of decency are to be decided by current standards, not ones of years ago. Atkins , 536 U.S. at 312 . And, that is just what the issue before this Court requires us to do: determine whether the evolving national consensus bars the imposition of the death penalty on juveniles today, even though it did not bar it fourteen years ago. To say that this determination must be made based on the state of the law and standards that existed when Stanford was decided in 1989, and that to do otherwise is to overrule Stanford , is simply incorrect. This Court clearly has the authority and the obligation to determine the case before it based on current — 2003 — standards of decency. See Patterson v. Texas, 536 U.S. 984, 985, 123 S.Ct. 24, 24 (2002) (Ginsburg, J. dissenting from denial of petition for writ) ("This Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), made it tenable for a petitioner to urge reconsideration of Stanford v. Kentucky, 492 U.S. 361 (1989). . . .") ; In Re Stanford , 537 U.S. 968, 123 S.Ct. 472 (2002) (Stevens, J. dissenting from denial of petition for writ) (Court should reconsider Stanford in light of Atkins because "even if we were not convinced in 1989 [that juveniles should not be subject to the death penalty] we should be all the more convinced today" because of the additional states barring such executions and because of the growth in scientific knowledge of the less than fully developed nature of the adolescent brain.).

B. A National Consensus Against the Juvenile Death Penalty.

As the discussion of Thompson , Stanford , Penry , and Atkins makes evident, many of the same principles and factors that have guided the Supreme Court's determination of the constitutionality of the death penalty for the mentally retarded have also guided the Supreme Court's determination of the constitutionality of the death penalty for juveniles. This Court therefore will use Atkins' approach in addressing whether a national consensus has developed against the juvenile death penalty since Stanford , looking at: (1) the extent of legislative action against or in favor of the juvenile death penalty; (2) the frequency of the imposition of the death penalty on juveniles in modern times, and the frequency with which it is carried out even when imposed; (3) national and international opinion on the juvenile death penalty; and (4) an independent examination of whether the death penalty for juveniles violates evolving standards of decency and so is barred by the Eighth and Fourteenth Amendments.

1. Legislative Action Has Consistently Been Against the Juvenile Death Penalty . At the time that Penry was decided in 1989, only two states had outlawed executing the mentally retarded, and the Supreme Court found that this was not sufficient to constitute a national consensus. In deciding that developments of the intervening years between Penry and Atkins demonstrated that a national consensus had developed against executing the mentally retarded, Atkins relied heavily on the fact that sixteen more state legislatures had barred execution of the mentally retarded, while no additional states had permitted it. It found this persuasive not principally because of the number of states that had passed such laws, but because of the consistency of the changes in the direction of opposition to the death penalty for the mentally retarded.

That same consistency of change has been shown in opposition to the juvenile death penalty. Indeed, the change was in the process of occurring when Stanford was decided. At the time of Stanford , eleven states barred the juvenile death penalty. This was substantial, but not yet enough to constitute a national consensus.

Since Stanford , however, and despite what Atkins called the popularity of "law and order" legislation, five more states have banned the practice of executing juvenile offenders. Two have done so by adopting legislation raising the age of execution to 18, and two have done so by newly reinstating the death penalty, but only for those offenders who were 18 or older at the time of their offense. The Washington Supreme Court has also held that its death penalty statute cannot be construed to authorize imposition of the death penalty for crimes committed by juvenile offenders, thereby adding the state of Washington to the list of states in which the practice is now prohibited. Thus, a total of sixteen states — to which should be added federal civilian and military courts — require a minimum age of 18 for imposition of the death penalty, only two fewer than the eighteen states Atkins identified as prohibiting execution of the mentally retarded. If the twelve states and the District of Columbia that bar the death penalty entirely are added, the combined total is twenty-eight states that prohibit juvenile executions — two fewer than the thirty states that prohibited execution of the mentally retarded at the time Atkins was decided.

Moreover, as is the case with the mentally retarded, the change has consistently been in the same direction. No state since Stanford has lowered the age for execution from 18 to 17 or 16, although Stanford allowed states to do so. Rather, the minimum age has either stayed the same or been raised, and the only two states to reinstate the death penalty since 1989 did so only for those 18 or older. In addition, many states, including Missouri, have recently considered legislation to raise the minimum age for executions to 17 or 18. Streib, supra, at 7. This accounts for the most legislative attention to the issue in twenty years. Id . In 2000, a bill to abolish the death penalty in New Hampshire passed both houses of the state legislature, but was vetoed. 2. Infrequency of Imposition of Death Penalty . In Atkins , the Supreme Court also found persuasive the fact that execution of the mentally retarded had become truly unusual. Many states that nominally had the death penalty on their books no longer imposed it at all or had never imposed it on a mentally retarded person, and only a total of five persons known to be mentally retarded had been executed in the United States in the thirteen years following the Court's decision in Penry . Atkins , 536 U.S. at 316 .

The practice of executing those under 18 has become similarly uncommon today. Although twenty-two states theoretically permit the death penalty for juveniles, only six (Missouri, Texas, Virginia, Georgia, Oklahoma, and Louisiana) have actually executed a juvenile offender since Stanford was decided fourteen years ago. Streib, supra, at 3-4. Of these six states, only three have executed juvenile offenders since 1993 — Texas, Virginia, and Oklahoma. Id. at 4. Louisiana last executed a juvenile offender in 1990; Georgia in 1993. Id. at 3. Missouri executed Frederick Lashley in 1993. That is the only officially recorded execution of a juvenile offender in Missouri since the state took over executions from Missouri's counties in 1937.

Perhaps most telling is that, while at least 366 juvenile offenders have been executed in this country since 1642 (when the first juvenile offender execution occurred), only twenty-two of the 366 were carried out during the current era (1973-2003). Id . Of these twenty-two executions, Texas, Virginia, and Oklahoma together account for eighty-one percent of the juvenile executions. Id . at 5. Although Alabama, Arizona, Arkansas, Delaware, Idaho, Kentucky, Mississippi, Nevada, Pennsylvania, South Dakota, Utah, and Wyoming all theoretically permit the death penalty for 16-year-olds, and while Florida, New Hampshire, and North Carolina theoretically permit it for 17-year-olds, none of these states has executed a juvenile since the death penalty was re-established in 1976. Id . at 3-4, 6. All but South Dakota and New Hampshire, however, have executed other offenders during that period. Indeed, even where juries have imposed a death sentence on a juvenile since the reinstatement of the death penalty in 1976, its application has consistently been reversed by the courts on a variety of grounds, making South Carolina the only other state (other than Texas, Louisiana, Missouri, Georgia, Virginia, and Oklahoma) to carry out a juvenile execution since 1976. Id. at 3. As the chart attached as Appendix A graphically demonstrates, more mentally retarded persons than juveniles have been executed, in more states, since the death penalty was reinstated in 1976.

As Atkins noted in regard to the mentally retarded, in light of the small number of executions of juvenile offenders carried out in the last decade, legislatures in states with a juvenile death penalty may have seen little reason to pass legislation barring it. Juveniles are so seldom executed that, other than perhaps in Texas and Virginia, the death penalty for juveniles has become so truly unusual that its potential application is more hypothetical than real.

But, the likelihood of such an execution is not hypothetical in Missouri today. The state argues that Missouri should become the only state other than Texas, Virginia, and now Oklahoma to carry out more than one juvenile execution since the reinstatement of the death penalty in 1976.

3. National and International Consensus. Opposition to the juvenile death penalty by professional, social, and religious organizations has been longstanding. At the time Stanford was decided, a large number of groups, including the ABA, child advocacy groups, psychiatric organizations, and church and religious groups filed amicus briefs urging an end to such executions. Since Stanford , additional organizations of professionals have also called for an end to the death penalty, including: The American Psychiatric Association, The American Academy of Child and Adolescent Psychiatry, The National Mental Health Association, The National Center for Youth Law, The Coalition for Juvenile Justice, The American Humane Association, and The Constitutional Project (a bipartisan nonprofit organization that seeks consensus on controversial legal and constitutional issues).

Additional groups of faith also have issued statements in opposition to the death penalty, including: American Baptist Churches in the USA, American Ethical Union, American Friends Service Committee, American Jewish Committee, Amnesty International, The Bruderhof Communities, Central Conference of America, Christian Church (Disciples of Christ), Church of the Brethren, Church Women United, The Episcopal Church, Evangelical Lutheran Church in America, Fellowship of Reconciliation, Friends Committee on National Legislation, Friends United Meeting, General Conference of General Baptists, General Conference Mennonite Church, The Mennonite Church, The Moravian Church in America, YMCA of the USA, Mormons for Equality and Social Justice, The Orthodox Church in America, National Council of the Churches of Christ, Presbyterian Church (USA), The Rabbinical Assembly, Reorganized Church of Jesus Christ of Latter Day Saints, Reformed Church in America, Unitarian Universalist Association, Union of American Hebrew Congregations, United Methodist Church, United Church of Christ, and United States Catholic Conference. A recent poll found that only thirty-four percent of Missourians support the death penalty for juveniles.

While Stanford found the opposition of social, professional, and religious groups to be of little importance, the Court's more recent decision in Atkins clearly demonstrated a shift back to reliance on such evidence to confirm the national consensus that evolving standards of decency proscribe imposition of the death penalty on the mentally retarded. Atkins , 536 U.S. at 316 n. 21.

Similarly, here, although by no means dispositive, we find the opposition to the juvenile death penalty of the wide array of groups within the United States listed above to be consistent with the legislative and other evidence that current standards of decency do not permit the imposition of the death penalty on juveniles. We also find of note that the views of the international community have consistently grown in opposition to the death penalty for juveniles. Article 37(a) of the United Nations Convention on the Rights of the Child and several other international treaties and agreements expressly prohibit the practice. Streib, supra, at 7. According to Amnesty International, officially sanctioned executions of juveniles have occurred in only two other countries in the world in the last few years, Iran and The Republic of the Congo (DRC). Amnesty International, Juveniles: The Death Penalty Gives up on Juvenile Offenders (July 28, 2003), at http://www.amnestyusa.org/abolish/juveniles . Of the last seven juvenile offender executions, five occurred in the United States. Streib, supra , at 7.

4. Independent Examination of Death Penalty. Atkins also undertook an independent analysis of whether the death penalty was warranted for mentally retarded offenders by examining whether the social purposes intended to be served by the death penalty, retribution and deterrence, applied to mentally retarded offenders. Atkins , 536 U.S. at 318-19 . The Supreme Court found that neither purpose would be furthered by executing the mentally retarded, as such individuals are inherently less culpable than other actors and less able to deliberate about their actions and, thus, are less able to be deterred by awareness that their crime could result in death. Id. at 319-21. Further, Atkins found that it was necessary to categorically exclude the mentally retarded from execution, rather than allowing their mental capacity to be considered on a case-by-case basis, because their reduced mental capacity would increase the possibility of false confessions and reduce their ability to show mitigation or assist counsel, so that "[m]entally retarded defendants in the aggregate face a special risk of wrongful execution." Id. at 321. Lastly, it concluded: "As Penry demonstrated. . . reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury." Id .

Similarly, as to juveniles, neither retribution nor deterrence provides an effective rationale for the imposition of the juvenile death penalty, and the risk of wrongful execution of juveniles is enhanced for reasons similar to that set out in Atkins in regard to the mentally retarded. While the parties have cited this Court to numerous current studies and scientific articles about the structure of the human mind, the continuing growth of those portions of the mind that control maturity and decision-making during adolescence and young adulthood, and the lesser ability of teenagers to reason, this Court need not look so far afield. The Supreme Court recognized the lesser culpability and developing nature of the adolescent mind in its 1988 decision in Thompson, 487 U.S. at 835 , in which it stated, "there is also broad agreement on the proposition that adolescents as a class are less mature and responsible than adults," id. at 834, and therefore "less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult." Id. at 835. Thompson noted that it was not the first time that the Court had been called upon to recognize the lesser culpability of the young, for in Eddings v. Oklahoma , 455 U.S. 104, 115-16 (1982):

We stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases: "But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly 'during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment' expected of adults. . . ."

Thompson , 487 U.S. at 834 . Thompson then stated:

Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.

Id . at 835 (footnotes omitted). Thompson concluded, "The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult." Id. Although Mr. Simmons is 17 rather than 15, he is still an adolescent, and this Court finds the rationales set forth in Thompson and Eddings apply here.

Similarly, the deterrence function of the death penalty can have little application to juveniles, not just because of their lesser ability to reason and their lack of informed judgment, but because, as discussed supra, the imposition of the death penalty on 16-year-olds and 17-year-olds has become so unusual in the last decade that "the likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually non-existent." Thompson , 487 U.S. at 837 (discussing effect of infrequency of executions of those 15 and younger).

Finally, as Mr. Simmons notes, the risk of wrongful execution also is greater as to younger offenders, who have had less time to develop ties to the community, less time to perform mitigating good works, and less time to develop a stable work history, than is true of adult offenders, and who are far more likely than adults to waive their rights and to give false confessions. Moreover, although nominally under Missouri law defendants are permitted to use their youth as a mitigating factor, this case provides a graphic illustration of the fact that their youth can become a further argument against them. In closing argument in Mr. Simmons' case, the state argued that the jury should not let him use his age to protect himself because if it did so, then he "wins." The state then argued, "Think about age. Seventeen years old. Isn't that scary. Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary." Thus, Mr. Simmons' youth was used to suggest greater immorality and future dangerousness and so to provide a further reason to impose the death penalty.

For these reasons, this Court concludes that the Supreme Court of the United States would hold that the execution of persons for crimes committed when they were under 18 years of age violates the "evolving standards of decency that mark the progress of a maturing society," and is prohibited by the Eighth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment.

IV. CONCLUSION

For the reasons set out above, this Court sets aside Mr. Simmons' death sentence and re-sentences him, pursuant to the Court' s authority under Sec. 565.035 RSMo 2000, to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.

White, C.J., Wolff and Teitelman, JJ., concur; Wolff, J., also files separate concurring opinion; Price, J., dissents in separate opinion filed; Benton and Limbaugh, JJ., concur in opinion of Price, J.

APPENDIX A