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Octobber 17, 2004

US Supreme Court argued on barring the execution of minors

The U.S. Supreme Court, which two years ago ruled that executing mentally retarded murderers was cruel and unusual punishment in violation of the Constitution, urged to draw a similar "bright line" forbidding the execution of defendants who were under 18 when they took a human life.

The justices' comments at oral arguments in a Missouri case indicated that they remain divided on the question, and two potential swing voters -- Justices Anthony Kennedy and Sandra Day O'Connor -- did not offer the clear endorsement of a more lenient policy that some death-penalty opponents had hoped for.

"Everyone agrees that there is some age at which juveniles can't be subjected to the death penalty," former U.S. Solicitor General Seth P. Waxman told the court. "The question is where." Waxman, who was representing convicted murderer Christopher Simmons, added: "Eighteen is the bright line between childhood and adulthood."

But James R. Layton, Jefferson City, Mo., state solicitor, urged the court to "stay its hand" and allow juries in states that permit the execution of 16- and 17-year-olds to decide in individual cases whether a murderer is too immature to deserve the death penalty. "There are 17-year-olds who are equally culpable with 18-, 19- and 20-year-olds," Layton said.

Under a 1988 Supreme Court decision, states may not execute defendants age 15 and younger. In asking the court to exempt 16- and 17-year-olds as well, Waxman cited a "substantial consensus" among state legislatures. He added that no state has ever lowered the age at which a convicted murderer could be put to death. "The movement has all been in one direction," he said.

States that allow the execution of minors are not just alone in this country, Waxman continued, "they are alone in the world." He noted that even China -- which was represented in the courtroom by a visiting judicial official -- barred the execution of minors.

Finally, Waxman told the court that neurobiological research had confirmed that adolescents are "less likely to be sufficiently mature to be the worst of the worst" and thus deserving of a death sentence. Because teenagers' brains are still developing, he said, a crime committed by someone under 18 might reflect not the defendant's "enduring character," but rather a "transient" proclivity for violence.

Layton, in his presentation, pleaded with the justices not to establish a cut-off age of 18 for death sentences, saying it would be "essentially an arbitrary line -- the kind of line legislators draw, not judges."

Layton also said Christopher Simmons, who was 17 when he hog-tied a woman and threw her into a river to drown, had failed to take advantage of a mechanism in Missouri law that would have allowed him to present evidence of his immaturity to a jury.

Layton was scornful of the scientific evidence offered for exempting juveniles from capital punishment, calling it "untested evidence from cause groups." As for an international consensus against the death penalty for juveniles, he said in a response to a question from Kennedy that world opinion "has no bearing" on how the court should interpret the U.S. Constitution.

The court's four liberal justices -- John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen Breyer -- are on record as criticizing the death penalty for juveniles and their questions reflected that view.

Referring to the fact that 18 is the minimum age for voting, jury service and access to tobacco, Ginsburg asked Layton: "Why can it be that someone is death-eligible at 18 but not eligible to be a member of the adult community?" And when Layton suggested that it would be arbitrary to make 18 the cut-off for the death penalty, an exasperated Stevens replied. "It's an equally arbitrary line at 17 or 16."

Many observers in the courtroom concentrated on the reactions of the two potential swing votes: O'Connor and Kennedy. O'Connor was mostly silent but did ask Layton whether the court wasn't required to determine whether there was now the "same consensus" against executing juveniles as there was against executing the retarded.

Kennedy seemed impressed by the fact that other countries were virtually unanimous in refusing to execute juveniles, but he also called "chilling" a brief filed by Alabama's attorney general that chronicled a series of heinous murders committed by juveniles in that state.

Kennedy also worried about the effect on teenage gangs of an 18-year-old minimum age. "Some members of gangs are 18," he told Waxman. "If we rule in your favor, wouldn't that lead to 16- and 17-year-olds being persuaded to be the hit men?"

Waxman replied that precisely because teenagers are more impulsive than adults, the death penalty is unlikely to deter adolescents at any age. He noted that Simmons, his client, wrongly told friends that they would "get away with" their crime because they were juveniles.

Source: World Court News, WN Network.