A penalty too harsh

January 28, 2004

IN AMERICA, youngsters under the age of 18 can't buy cigarettes. They can't be served a cocktail in a bar or pick up a six-pack of beer. They can't vote. They can't own property outright. And yet, executing someone who committed a heinous crime at age 16 or 17 is permissible in this society. Condoned in 22 states. Practiced vigorously in at least one, Texas.

Only in America. The U.S. Supreme Court has the opportunity to put a stop to that barbarous practice, and should.

America's interest in executing its most vulnerable has waned considerably since the court reinstated the death penalty in 1976. A 2002 Gallup poll showed that 69 percent of adults in the United States oppose capital punishment for juveniles. Of the 22 states that permit the death penalty for juveniles, 15 have not carried out an execution in the past 28 years. Last year marked the fewest juvenile executions in 15 years - only two.

The court's decision Monday to review the constitutionality of the death penalty for juveniles comes in a Missouri case in which the state's Supreme Court found the punishment to be so little used now that it qualified as "cruel and unusual punishment" under the Eighth Amendment of the Constitution. The Missouri court spared the life of Christopher Simmons, a convicted murderer who hardly qualifies as a poster boy for outlawing the death penalty. Prosecutors say Mr. Simmons, now 27, boasted that he could beat the case because he was a teen-ager.

But teens don't possess the maturity or intellectual capacity to comprehend the consequences of their actions. Scientific studies show that to be the case: Areas of the brain that control impulse, reasoning and judgment don't fully mature until our 20s.

If a measure of a society is how it chooses to punish its most incorrigible and for whom it reserves its most horrifying punishment, then this country has failed.

The Supreme Court will be looking at whether a consensus exists in the country now to narrow use of the death penalty once again.

Since 1989, when the court found no such consensus on executing offenders who committed their crimes as juveniles, five states have joined the 12 that set a minimum age of 18 for execution. A Virginia jury's decision to spare teen-age murderer Lee Boyd Malvo the death penalty also suggests an attitude shift. Federal prosecutors wanted Mr. Malvo tried there first because of Virginia's uncompromising use of the death penalty.

When the Supreme Court takes up the Missouri case in the fall, it will do so with at least four justices already on record opposing the death penalty for juveniles. Fifteen years ago, Justice Sandra Day O'Connor noted that "the day may come" when the prevailing view is against executing offenders who committed their crimes as 16- and 17-year-olds. The day is here.

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