October 14, 2004
Justices Weigh Executions of Young Killers
By LINDA GREENHOUSE
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WASHINGTON, Oct. 13 - If American society has indeed reached a consensus
that the death penalty should not apply to those who kill at age 16 or
17, as the lawyer for a young Missouri murderer argued to the Supreme
Court on Wednesday, no such consensus was apparent among the justices
Two years after ruling 6 to 3 that the execution of mentally retarded
offenders is categorically unconstitutional, the court appeared deeply
divided over whether the reasoning of that decision meant that the death
penalty for acts committed while a juvenile should likewise be seen as
"cruel and unusual punishment" in violation of the Eighth Amendment.
The Missouri Supreme Court reached that conclusion by a 4-to-3 decision
in August 2003, freeing Christopher Simmons from death row for a murder
he committed in 1993 when he was 17. It resentenced him to life in
prison without parole.
Missouri appealed to the United States Supreme Court, arguing that the
state court lacked authority to reject the Supreme Court's last decision
on the question, a 1989 ruling that upheld capital punishment for 16-
and 17-year-olds. A 1988 decision barred the execution of those who
killed when they were younger than 16.
Seth P. Waxman, representing Mr. Simmons, argued that not only the
increasing rarity of juvenile executions since 1989 but also new medical
and psychological understanding of teenage immaturity validated the step
the Missouri court took last year.
"These developments change the constitutional calculus," Mr. Waxman, a
former United States solicitor general, told the justices. The new
scientific evidence, described in briefs filed by the American Medical
Association, the American Psychological Association and other
professional groups, "explains and validates the consensus that society
has drawn," he said.
Justice Antonin Scalia countered: "If all this is so clear, why can't
the legislature take it into account? All you have to do is bring these
facts to the attention of the legislature."
Mr. Waxman replied that the number of states that actually execute
people for crimes committed as juveniles is "very small." While 19
states nominally permit the execution of 17-year-old murderers, only
three states - Texas, Virginia and Oklahoma - have executed juvenile
offenders in the past 10 years.
Oklahoma has no juvenile offender on its death row. Virginia has one,
and a jury there refused last year to impose a death sentence after
finding Lee Malvo, the teenage member of a pair of Washington-area
snipers, guilty of murder. Texas, with 29 inmates now on death row for
juvenile crimes, accounts for more than half the executions of juvenile
offenders, 13 of 22, carried out in the United States since the modern
era of capital punishment began in 1976. There were 2 juvenile death
sentences imposed in the United States last year and 1 so far this year,
down from 14 five years ago.
Justice Scalia told Mr. Waxman he was not surprised by the low numbers.
They demonstrated juries' ability to take a defendant's youth into
consideration, he said, adding that the question was whether to leave it
to juries or to impose a "hard rule."
Chief Justice William H. Rehnquist challenged Mr. Waxman on whether the
scientific evidence contained in the briefs was even appropriate for the
court's consideration. Noting that the studies had not been introduced
at Mr. Simmons's trial, he said, "You're talking facts, and facts are
ordinarily adduced at trial for cross-examination."
Mr. Waxman, temporarily nonplussed, replied: "The issue for this court
is not the application of law to a particular defendant, but what the
Constitution requires as a matter of law."
Justice Anthony M. Kennedy asked Mr. Waxman whether he would lose the
case if the court accepted neither the scientific evidence nor the
existence of a consensus.
"This is truly a case in which the whole is greater than the sum of the
parts," Mr. Waxman replied.
Four justices - John Paul Stevens, David H. Souter, Ruth Bader Ginsburg
and Stephen G. Breyer - have made clear in recent years their desire to
invalidate the juvenile death penalty. "The practice of executing such
offenders is a relic of the past and is inconsistent with evolving
standards of decency in a civilized society," the four wrote in October
2002, dissenting from the court's refusal to grant a writ of habeas
corpus to a Kentucky inmate, an action that required five votes.
Just as clearly, Chief Justice Rehnquist and Justices Scalia and
Clarence Thomas, the three dissenters in the retardation case, will not
vote to extend that decision to juveniles.
With these facts known to most people in the courtroom, the focus of
attention was on Justice Kennedy and Justice Sandra Day O'Connor, both
of whom rejected the challenge to juvenile executions in 1989 and at
least one of whom must repudiate that precedent if Mr. Simmons is to
Justice O'Connor, usually an active participant in the court's
arguments, made only one comment, to James R. Layton, Missouri's state
solicitor. She noted that the number of states that have rejected
execution of those younger than 18 was "about the same" as the number
that had rejected execution of the retarded in the years leading up to
the court's ruling in that case. Of the 38 states with a death penalty,
19 have a minimum age of 18. In 2002, 18 states barred execution of the
retarded. "Are we at least required to look at that?" Justice O'Connor
Mr. Layton replied that the retardation case, Atkins v. Virginia, took
account of an "inexorable trend" among the states, and "we don't have
that here." In the retardation case, there had been what the court
called a "dramatic shift in the state legislative landscape," with only
two states having barred execution of the retarded as recently as 1989.
In fact, Justice Stevens, in his majority opinion in the retardation
case, went out of his way in a footnote to contrast that shift with the
much slower rate of change on the youth question. The footnote may have
been necessary to hold the vote of Justice O'Connor or Justice Kennedy.
On Wednesday, Justice Kennedy appeared deeply conflicted throughout the
argument. He said he was concerned that drawing the line at 18 might
induce teenage gangs to designate their 16- or 17-year-old members as
"hit men." A brief filed by Alabama that contained grisly descriptions
of murders committed by teenagers made for "chilling reading," Justice
Kennedy said, adding that he wished all those who had signed briefs for
Mr. Simmons "had read it before they signed on." This led Justice
Stevens to say that the death penalty did not seem to have deterred
those crimes, all of which took place in states that permit the
execution of juvenile offenders.
The case, Roper v. Simmons, No. 03-633, has attracted wide interest
overseas, with briefs for Mr. Simmons signed by the European Union, the
45-member Council of Europe, and other organizations. The United States
and Somalia are the only nations that have not formally repudiated
executing juveniles. A brief filed by former United States diplomats
asserted that the situation was an irritant in international relations.
Should the court give that brief any credence, Justice Stevens asked Mr.
Layton. No, Missouri's lawyer replied, the question remained one for
legislatures and not courts.