Justices to hear case on juvenile death penalty

The Supreme Court agreed yesterday to consider abolishing the death penalty for juvenile killers, one of the most prominent questions still before the court as it revisits how capital punishment is carried out across the country.

Legal scholars said the court appears poised to reverse a 1989 decision and declare the death penalty for 16- and 17-year-olds a form of cruel and unusual punishment. Two years ago, the court ended the death penalty for the mentally retarded and, in an unusual statement issued less than a year later, four justices called execution of juveniles "shameful."


The court said yesterday that it would hear the case of a Missouri man sentenced to death for robbing and killing a woman when he was 17.

The decision could have high-profile implications - most notably for Lee Boyd Malvo, 18, who was convicted of carrying out the Washington-area sniper attacks that claimed 10 lives while he was 17. A Virginia jury spared Malvo a death sentence, citing his age as one factor, but he is expected to face other death penalty trials.


"It is not a question of whether the Supreme Court will declare this unconstitutional, but when," said Victor L. Streib, a law professor at Ohio Northern University who has extensively studied juvenile death penalty issues and supports a ban. "Maybe this will be the time, maybe it won't, but it's soon."

Robert Blecker, a professor at New York Law School who believes the death penalty should be preserved for teen-age killers, agreed. "My prediction is they will outlaw capital punishment for those under 18," said Blecker, who said the court then is likely to turn to the questions of whether killers under 21 should face death sentences or those who have borderline mental retardation.

One issue before the justices 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 at the time they committed their crimes.

The court also is expected to weigh the question of how capable youthful defendants are of understanding the implications of their crimes.

Both issues are key factors in determining whether the practice violates the Constitution's Eighth Amendment ban on "cruel and unusual punishment," and both shaped the court's 6-3 ruling in the 2002 case involving a Virginia man, Darryl Renard Atkins, that executing the mentally retarded is unconstitutionally cruel.

Eye on higher court

The Missouri Supreme Court closely tracked the legal arguments in the Atkins case when it overturned the death sentence of Christopher Simmons, now 27, who was 17 in September 1993 when he broke into the home of Shirley Crook, robbed her, wrapped her head and hands in duct tape and electrical wire, and pushed her from a railroad bridge into a river.

Simmons confessed to the killing, which he planned with two teen-age friends after assuring them that "their status as juveniles would allow them to get away with it," according to court papers filed by the Missouri attorney general's office.


His death sentence was once upheld by the state's highest court before defense attorneys successfully argued that the execution of juvenile offenders is cruel and unusual. In its ruling, the Missouri Supreme Court wrote that, "This court finds that the [U.S.] Supreme Court would today hold such executions are prohibited."

The 4-3 decision came with a sharp dissent from state judge William Ray Price Jr., who wrote: "It is the United States Supreme Court's prerogative, and its alone, to overrule one of its decisions."

Steven D. Benjamin, a Richmond, Va., defense attorney who closely tracks death penalty issues, said the Missouri ruling appeared to have forced the hand of the Supreme Court. Twice last year, the court refused to hear appeals by death row inmates who were teen-agers when they committed their crimes.

The court also refused in October 2002 to hear an appeal on the issue from Kevin Stanford, the Kentucky man at the center of the court's 1989 ruling. The decision not to hear Stanford's case prompted a dissenting opinion from Justice John Paul Stevens in which he called executing juvenile offenders "a relic of that past."

"We should put an end to this shameful practice," Stevens wrote. His dissent was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

Streib, at Ohio Northern University, said the statement provided rare encouragement for death penalty opponents going into the Missouri case.


"It is kind of unusual to start with four justices in your pocket," he said. "Of course, predicting how the court is going to come out is crazy - it's just impossible to do."

Missouri Attorney General Jeremiah W. "Jay" Nixon said in an interview yesterday that he thought it was important for the court to draw a "bright and understandable" line regarding the appropriate age for murderers to face capital punishment. Nixon said he was not concerned about the four justices already on record opposing executions for juvenile offenders.

"What's really shameful is to go through the facts of these cases," Nixon said.

The court's decision to hear the Missouri case came without comment. Ordinarily, a minimum of four justices must agree to grant an appeal, although votes are needed to grant an appal in a habeas corpus petition - as was the case in the Stanford appeal.

O'Connor and Kennedy

Justices Sandra Day O'Connor and Anthony M. Kennedy are expected to be closely watched in the Missouri case because they both joined the four judges who typically make up the court's liberal wing in voting to end executions for the mentally retarded.


Benjamin said the court's timing was significant in part because it followed so closely on last month's verdict against Malvo and the jury's recommended life sentence. By the time the trial began, Malvo had turned 18, legally an adult.

"Now there's an increased belief that if you consider Malvo to be as bad as they come - someone who deliberately and in cold blood committed these series of random killings - and even this person is not sentenced to death by a Virginia jury, then surely this is the best proof you could ever have that society no longer accepts the premise that adolescents should be sentenced to death," Benjamin said.

In the Atkins case two years ago, the court noted that state legislatures in 30 states had prohibited the execution of retarded people. By comparison, 28 states bar execution of juvenile offenders - not including Missouri, the District of Columbia or the federal government, according to the Death Penalty Information Center, a Washington group that closely tracks death penalty statistics.

Of the 22 states that allow executions of juvenile offenders, 15 have not carried out a juvenile death sentence since the Supreme Court reinstated the death penalty in 1976, according to the center's data.

Streib, who also closely tracks juvenile death penalty cases, said no states have moved to adopt a juvenile execution law since 1976, even as legislatures have acted to expand death penalty statutes in other ways.

That also is true in Maryland, which does not allow execution of juvenile offenders. Some lawmakers have supported making the state's adult death penalty law apply to a greater number of crimes in the aftermath of the 2002 sniper attacks, but there has not been a move to lower the age when a defendant can face a death sentence.


As a practical matter, Streib said, Texas is now the only state with a standing practice of executing young killers. The Death Penalty Information Center lists Texas as having 28 death row inmates who were under 18 when they committed their crimes.

Sun staff writer Stephen Kiehl contributed to this article.