Sniper case revisits juvenile death penalty

Proponents of the juvenile death penalty have a new three-word pitch for why capital punishment should not be abolished for 16- and 17-year-olds: "Lee Boyd Malvo."

If there ever was a crime that deserves punishment by death, capital punishment supporters say, it is the series of sniper attacks that held the nation's capital in a grip of terror in October last year.

Mr. Malvo has told police he was the triggerman in most, if not all, of the 13 random shootings that resulted in 10 deaths over a three-week period. "I intended to kill them all," he told police interrogators in a recorded statement played for jurors at his trial.

Malvo was four months shy of his 18th birthday at the time of the shootings.

From the perspective of those seeking abolition of the juvenile death penalty, the sniper case couldn't have come at a worse time. Only months earlier, the US Supreme Court had ruled that capital punishment for those who are mentally retarded violates the Eighth Amendment's prohibition on cruel and unusual punishment. Legal analysts saw in the 6-to-3 landmark ruling the potential for a similar decision banning the execution of juveniles. The idea was that if the mentally retarded were incapable of being held fully blameworthy for their crimes, juveniles were also less than fully blameworthy (compared with adults).

In addition, there was an emerging consensus among state lawmakers that the death penalty was inappropriate for mentally retarded criminals. And a similar consensus is emerging against sentencing juveniles to death, they say.

But the problem with this analysis is that only four Supreme Court justices have publicly announced their willingness to strike down the juvenile death penalty. The two swing votes in the 6-to-3 decision, Justices Sandra Day O'Connor and Anthony Kennedy, have so far balked at exerting their tie-breaking power to make it happen.

And now with the Malvo trial in full swing, it remains unclear how Justices O'Connor and Kennedy will view the juvenile death-penalty issue.

"[Malvo] is not exactly the best poster boy for this issue," says Laurence Steinberg, a Temple University psychologist and director of the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice in Philadelphia. "If you talk to people who are juvenile death-penalty abolitionists, they have said they felt the antijuvenile death-penalty movement was gaining a lot of momentum - until the sniper case."

Nonetheless, Mr. Steinberg and many other juvenile-justice experts say it is inevitable that the US Supreme Court will eventually strike down capital punishment for juveniles. The only question, they say, is when.

The justices will have an opportunity as early as this term to confront the issue, should they agree to hear a case being appealed from the Missouri Supreme Court. At issue is a 4-to-3 decision announced in August in which the majority declared the juvenile death penalty unconstitutional.

What is unusual about the Missouri court's ruling is that the US Supreme Court has never said that juvenile death sentences violate constitutional law. Yet the Missouri high court based its ruling on a prediction of future action by the US Supreme Court.

Kent Scheidegger, a death-penalty expert at the Criminal Justice Legal Foundation in Sacramento, Calif., says there is a good chance the high court will take up the Missouri case - but not to uphold the decision."We have a lower court [in Missouri] that has disobeyed the precedent based on what it thinks the Supreme Court may say in the future," he says.

Mr. Scheidegger says the high court may take the case to put the nation's judges on notice. "They have said more than once to lower courts, 'It is only for us to overrule our own precedents. You must obey them until we do,' " he says.

But others are hopeful that O'Connor, Kennedy, or both will side with the court's liberal wing and set 18 as the minimum age for capital punishment in the US.

"One of the problems in the law is that it is hard to draw bright lines," says Stephen Harper, director of the Juvenile Death Penalty Initiative. "But we have done it for drinking, and driving, for voting, making medical decisions, and seeing restricted movies."

He adds, "We think adolescents are so immature that we are not going to take any chances, so we don't let them drink [alcoholic beverages] until they are 21." Yet, he says, they can be put to death by the state for decisions and actions they take at ages 16 and 17.

Some opponents of the death penalty for juveniles say the Malvo case illustrates how adolescents must be considered less culpable than adults because they are more easily drawn into criminal activity by an older companion.

In the Malvo case, defense lawyers are arguing that Malvo was "brainwashed" to conduct the sniper attacks by his surrogate father, John Allen Muhammad. Rather than arguing that Malvo was merely immature, his lawyers are presenting a version of an insanity defense - that the level of control by Mr. Muhammad rendered Malvo incapable of independent thought or action.

"This is a classic case of someone whose autonomy of thought was severely compromised," says Jeffrey Fagan, a criminologist and juvenile-crime expert at Columbia University in New York.

The verdict in the Malvo case could affect more than just Malvo's future, analysts say. "If the jury is persuaded in the Malvo case that he shouldn't receive the death penalty because of these mitigating factors, then abolishing the juvenile death penalty is a slam dunk," says Temple University's Steinberg. "If you are not going to use it in this case, it is hard to imagine a case where you would."