U.S. is alone in world in controversial practice
By David G. Savage / Los Angeles Times
WASHINGTON -- The Supreme Court struggled Wednesday over whether the
time has come to end the death penalty for young murderers. Now that
Iran and Congo say they have repudiated the practice, the United States
stands alone in the world in sanctioning the execution of minors.
Two years ago, the court in a 6-3 decision abolished capital
punishment for the mentally retarded, saying that a "national
consensus" had emerged that executing such people amounted to cruel and
unusual punishment. They noted that all but a handful of states had
exempted mentally retarded people from the death penalty.
On Wednesday, the justices debated whether a similar national
consensus exists that now calls for limiting capital punishment to
murderers who are age 18 or above when they commit crimes.
Despite the vote of two years ago, it was not clear from Wednesday's argument that a majority would exempt youthful killers.
Justice Anthony M. Kennedy said he was worried that teenage
criminals will be emboldened if they are free from the full force of
the criminal law. "Juveniles run in gangs," he said, reasoning that
gang members would dodge the death penalty by recruiting their youngest
members as "the hit man."
"I'm very concerned about that," said Kennedy, who voted in the
majority to stop the death penalty for mentally retarded individuals.
Justice Sandra Day O'Connor, the other swing vote, noted that
several states in recent years have raised the minimum age to 18 for
imposing the death penalty. "It's about the same consensus that existed
on mental retardation," she said, in a hopeful sign for the foes of
capital punishment.
Most states either have no death penalty law or set 18 as the
minimum age. Still, 19 states permit prosecutors to seek a death
sentence for murderers who are 16 or 17, although fewer have done so of
late. In 1999, for example, 14 underage murderers received death
sentences, but the number has declined steadily. Only two teenage
murderers received death sentences last year and only one such sentence
has been handed down this year.
The clear leader remains Texas. As of June 30, 72 people who were 16
or 17 at the time of their crimes sat on death rows around the nation,
and 29 of them were in Texas.
The case before the court Wednesday came from Missouri. It concerned
Christopher Simmons, who in 1993 abducted a woman in his neighborhood,
bound her in duct tape and threw her alive into a river from a railroad
bridge. He was 17 at the time of the murder and bragged that he would
get off because of his age.
Instead, a jury outside St. Louis convicted him and sentenced him to
die. The Missouri Supreme Court voided the death sentence and ordered
him to spend life in prison, and the state attorney general filed an
appeal.
James Layton, a Missouri state attorney, urged the justices to let
juries weigh each case and decide for themselves when a murderer
deserves death.
If the age for capital punishment needs to be changed, it should be
done by elected lawmakers, not judges, he said. "Age is a legislative
question. It is the kind of fact a legislature should decide, not this
court," he argued.
Seth Waxman, the former U.S. solicitor general in the Clinton
administration, argued for Simmons and he urged the high court to set a
constitutional rule that limits capital punishment to those who are
legally adults.
In law, "18 is the bright line between childhood and adulthood," he
said. Since young people need to be age 18 to vote, to join the
military, to gamble, or even to marry without their parents' consent,
it is reasonable to set 18 as the minimum age for capital punishment,
he said.
"We are literally alone in the world" in permitting the executions of those who committed crimes as juveniles, he said.
Waxman argued Wednesday that developments in brain research, and
Simmons' own statements, show that adolescents do not fully grasp the
possible ramifications of their actions.
"No mature adult would have thought 'I can get away with this,' " Waxman told the court.
Two of the court's most conservative justices appeared unswayed.
Chief Justice William H. Rehnquist suggested that any scientific
evidence about teenage brain development should have to be tested at
trial, by a jury. And Justice Antonin Scalia rejected the idea teenage
killers are far different people by the time they stand trial or face
execution.
"I thought we punish people, criminals, for what they were - not for
what they are," Scalia said. "To say that adolescents change - everyone
changes, but that doesn't justify eliminating an appropriate
punishment."
Four justices - John Paul Stevens, David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer - have said in the past they believe
such executions are a "shameful practice" and should be abolished.
Rehnquist, Scalia and Justice Clarence Thomas have said the court should leave the issue to the states.
A ruling in Roper vs. Simmons is due in several months.
The Baltimore Sun contributed to this report.
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