Juvenile Death Penalty: Fair or Unfair?

NEW YORK – In the dark, early-morning hours of Sept. 8, 1993, Shirley Crook was awakened by a light in her hallway.

The Fenton, Mo., woman was subsequently robbed of $7, bound with duct tape and wire and driven to a park, where she was shoved off a railroad trestle to her death in the river below.

Christopher Simmons (search) was sentenced to death for robbing and killing the 46-year-old housewife. He was 17 years old at the time.

Simmons should have died for his crime 2½ years ago. But appeals from Simmons' attorneys resulted in a stay of execution, and his case was argued before the U.S. Supreme Court last October. A decision is expected in the coming weeks.

At issue in Roper v. Simmons is whether executing 16- and 17-year-old murderers is no longer acceptable in the United States. Along with the lives of 72 young inmates, advocates on both sides of the death-penalty debate believe what's really at stake is the future of capital punishment in America.

Death and the Court

When Missouri's state supreme court declared Simmons' death sentence violated the Eighth Amendment's prohibition of "cruel and unusual" punishment, it based its finding in part on the perception of a growing reluctance to execute minors.

Since 1989, when the U.S. Supreme Court upheld the death penalty for 16- and 17-year-olds in Stanford v. Kentucky (search), four states have raised their minimum age to 18 through legislative action, and two states' top courts also raised the age of eligibility, bringing the total number of states that prohibit the practice to 19. That's on top of the 13 states with no death penalty at all. Meanwhile, no state has lowered its eligibility age.

This trend has not gone unnoticed by the court. In 2002, Justice John Paul Stevens noted the contrast between the tiny numbers of juveniles sent to death row and state legislatures' increased preoccupation with those offenders.

He also cited polls that consistently showed only a small percentage of Americans support the execution of minors, even if they support the death penalty in general.

Chief Justice William H. Rehnquist is particularly suspicious of letting the public drive the judiciary. But the findings of the Capital Jury Project (search), published last year, found that just 17.5 percent of jurors favored the death penalty for minors — a figure that more than doubled when the offenders were mentally retarded.

Atkins v. Virginia (search), the court's 2002 decision against the death penalty for the mentally disabled, has been seen as paving the way for a decision favorable to Simmons.

In prior arguments, Justices Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer have cited new scientific data pointing to biophysical explanations for adolescents' diminished cognitive capabilities.

The American Medical Association and American Psychiatric Association, among others, have argued that 16- and 17-year-olds are, in a sense, physically incapable of making judgments as well as adults, and are therefore not as culpable.

"Older adolescents are not simply miniature adults, with less experience or wisdom. They are also not as equipped as adults to engage in moral reasoning and adjust their conduct accordingly," they wrote in an amicus supporting Simmons.

Is 18 the Magic Number?

The United States is increasingly alone in the world in its application of capital punishment. And the only other nations that subject minors to execution are Iran, Saudi Arabia, Nigeria and the Democratic Republic of Congo.

Despite more widespread media scrutiny, along with an arguably less forgiving attitude that can be traced back to the Columbine massacre, polls show the majority of Americans reserve mercy for even the most depraved teen killers.

But for those who don't, it's a matter of justice.

"You can absolutely forgive the offender and have no issue with that person being executed," said Dianne Clements, a founder of Texas-based Justice for All (search). In 1991, her 13-year-old son was shot and killed by another child.

"Executed killers do not harm again," Clements said. "If you execute somebody, they're deterred."

Robert Blecker, a professor of criminal law at New York Law School and an outspoken advocate of the death penalty, argues that the very fact that some minors commit atrocious crimes merits the option of capital punishment

"There are some people who kill so cruelly and callously and with such wanton depravity that they deserve to die, and we have an obligation to execute them," he said. But, Blecker stressed, "only for the worst of the worst."

While a teenager who brutally and deliberately murders his entire family probably deserves to be executed, Blecker said, someone like Beltway sniper Lee Boyd Malvo (search) does not. The mitigating factors of childhood neglect and the influence of John Allen Muhammad (search), Malvo's adult accomplice, keep Malvo, who was then 17, out of the "worst of the worst" category, Blecker believes.

While Muhammad was sentenced to die for the 2002 slayings, a plea agreement spared Malvo the death sentence last October. But an attorney in Prince William's County, Va., has said that if the Supreme Court decides against Simmons, he will seek execution for the now-20-year-old Malvo in a second sniper trial.

Delaware has tried only two juveniles for capital murder in the past 15 years, but Deputy Attorney General Paul Wallace wants execution to remain an option.

Severity of appropriate punishment is "an individualized decision, whether the person is an adult or juvenile," Wallace said. Delaware was one of six states to file an amicus brief supporting Roper.

Wallace said that some teenage killers show "great maturity in their decision-making." But the lack of maturity in most teenagers may prove too morally compelling, said constitutional law professor Louis Dean Bilionis, who believes the argument for individualized punishment could prove wobbly.

"The court has said that below a certain age you can't deal with juveniles individually, you have to deal with them as a group," said Bilionis, who teaches at University of North Carolina School of Law. "The history of capital punishment for more than a century has been one of narrowing its application to cases in which [it is] best defendable — it is not comfortably defendable when applied to juveniles."

Robert D. Dinerstein, a specialist in mental disability issues at American University Washington College of Law, stressed that the law as applied to youth should not be about revenge.

"I have a hard time, not to say there isn't evil in the world, to write a young person off so completely," Dinerstein said. "What does it mean to take a life that is so much in progress?"

Though on opposing sides, Blecker and Bilionis believe a decision against capital punishment for under-18s is inevitable. And that gives death-penalty opponents in states like Texas hope.

Democratic State Rep. Lon Burnam has re-introduced a bill raising the age of eligibility to 18. While pessimistic about its prospects in Texas' heavily pro-death-penalty legislature, he is eager for the Supreme Court to end his struggle.

And even Lone Star Staters, Burnam said, are capable of rethinking capital punishment.

"It's really widely exaggerated that there's a wide cultural foaming at the mouth for the death penalty here," he said. "I think it's shifting as people begin to recognize the degree to which we have railroaded people into convictions."

But if the tide shifts in the Supreme Court, prepare for more crime, warned David Muhlhausen of the Heritage Foundation (search).

"It's something we have to fear, no death penalty at all. If they win this [Roper v. Simmons] ... the next thing they'll want is to raise the age to 25," he said.

In the amicus filed by six states for Roper, Alabama's attorney general wrote, "There is no magic in the age 18."

Seventy-two inmates sitting on death row for crimes they committed as teens hope at least five justices disagree.