Ban on execution of teens weighed

Divided Supreme Court hears case of Mo. man who killed at age 17

October 14, 2004|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

WASHINGTON - A divided Supreme Court weighed yesterday whether to ban the death penalty for juveniles who kill, one of the highest-profile questions confronting the justices as they continue re-examining who is subject to capital punishment.

Two years ago, the court abolished the death penalty for the mentally retarded by a 6-3 vote, and four of the nine justices went on record saying that the court also should end the execution of offenders under age 18. But it was unclear yesterday if they could gain a decisive fifth vote at arguments in the case of a Missouri man sentenced to die for robbing and killing a woman when he was 17.

Justice Anthony Kennedy, a potential swing vote, noted with concern that the United States is one of only a handful of countries to allow executions of juveniles - but he also raised the possibility of violent gangs recruiting 16- and 17-year-old as hit men if the teenagers are shielded from the death penalty.

"If we rule against you, the deterrent remains," Kennedy told a lawyer representing the Missouri inmate, Christopher Simmons.

Kennedy and Justice Sandra Day O'Connor are expected to cast the deciding votes in the closely watched case. The two moderate justices joined the court's liberal wing in the panel's 2002 decision that executing the mentally retarded violates Eighth Amendment protections against "cruel and unusual punishment."

O'Connor said little yesterday, asking a single question about the number of states that permit death sentences for teens.

Part of the test before the court is whether public sentiment surrounding capital punishment has shifted since the Supreme Court, ruling in a Kentucky case in 1989, allowed states to execute killers who were 16 or older when they committed their crimes.

Washington lawyer Seth P. Waxman, who served as U.S. solicitor general during the Clinton administration, represented Simmons yesterday before the court. Waxman said an evolving consensus against the juvenile death penalty and new research on brain development should persuade the court to abolish the practice.

But James R. Layton, Missouri's state solicitor, countered that juries and state legislatures - not the court - should decide whether juveniles who kill are sentenced to death. He pointed to a Virginia jury's decision to spare convicted sniper Lee Boyd Malvo from receiving a death sentence for carrying out the deadly Washington-area attacks when he was 17, with jurors citing Malvo's age and the influence of an older co-defendant.

"There are 17-year-olds who are equally culpable to those who are 18, 20, 25 or some other age," Layton said. He told the justices that they should not be swayed by the "marshaling of untested evidence" or international opinion, saying the decision "needs to be based on the mores of American society."

The United States is one of only seven of countries that have allowed executions of young offenders since 1990, and the other countries - including China, Iran and Pakistan - have virtually abandoned the practice to conform with international human rights treaties.

At the end of last month, there were 72 death row inmates in this country convicted of killings at age 16 or 17, according to statistics compiled by the Washington-based Death Penalty Information Center. Texas has the most, at 29.

The Supreme Court had repeatedly declined to revisit the question of executing juveniles, but its hand was forced last year when the Missouri Supreme Court overturned the death sentence of Simmons, now 28. He was 17 in September 1993 when he broke into the home of Shirley Crook, robbed her, bound her with duct tape and electrical wire, and pushed her from a railroad bridge to her death.

Simmons confessed to the killing, which he planned with two teenage friends after telling them "their status as juveniles would allow them to get away with it," court records show.

Waxman argued yesterday that new developments in brain research, and Simmons' statements, show that adolescents do not fully grasp the possible ramifications of their actions.

Two of the court's most conservative justices appeared unswayed. Chief Justice William H. Rehnquist suggested that scientific evidence about teenage brain development should have to be tested at trial, by a jury. Justice Antonin Scalia rejected the idea that 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."

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