Executing juveniles: Is it cruel?

The high court weighs whether to ban the death penalty for anyone under 18.

There are 72 individuals currently on death row for crimes committed as juveniles. Wednesday, the US Supreme Court takes up a Missouri death-penalty case that could invalidate every one of them.

At issue is whether the juvenile death penalty violates the Eighth Amendment's ban on cruel and unusual punishment. More specifically, the high court must decide whether in light of "evolving standards of decency" in the US, a national consensus has emerged against the practice of executing those who are 16 and 17 years old at the time of their crime.

"This is a historic moment in the evolution of the Constitution," says Marsha Levick of the Juvenile Law Center in Philadelphia.

The case, Roper v. Simmons, is being closely watched by a wide array of child advocacy groups, civil rights organizations, medical and psychological associations, and international law experts, all urging the court to ban capital punishment for anyone under age 18. On the other side, Missouri prosecutors are backed by six states that filed a joint friend-of-the-court brief and a Texas victims' rights group supporting the death penalty.

Although the case before the high court involves a crime committed by a Missouri teen, a high-court ruling striking down the juvenile death penalty as unconstitutional would apply across the nation.

The death sentences for these 72 individuals represent a significant investment by state and local officials - and juries made up of ordinary Americans - seeking to mete out what they view as an appropriate level of punishment for the most heinous crimes.

But under the Supreme Court's Eighth Amendment jurisprudence, those interests must be balanced against contemporary national attitudes about the death penalty. "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," wrote Earl Warren, then chief justice, in a 1958 decision.

The last time the Supreme Court examined whether a national consensus had emerged against the use of the death penalty for juvenile defendants was 1989. That same year, the court also examined whether a similar consensus existed against executing mentally retarded defendants. In both cases, the court ruled that a national consensus had not yet emerged.

But then, two years ago in a case called Atkins v. Virginia, the high court reversed its 1989 decision regarding mentally retarded capital defendants. The opinion noted that a growing number of states were passing laws barring the execution of the mentally retarded. It added that while mentally retarded individuals frequently know the difference between right and wrong and are competent to stand trial, their mental deficiencies reduce their level of blameworthiness.

Juvenile death-penalty opponents immediately saw the potential to apply the high court's holding in the Atkins case to win a similar ruling. If mental retardation made certain defendants less blameworthy and thus ineligible for the death penalty, these experts reasoned that similar characteristics of adolescent defendants might lead the court to the same conclusion.

The opportunity arose in the case of Christopher Simmons. He had been sentenced to death for tying up a woman while burglarizing her home and then dumping her - while still bound and alive - into a river. Mr. Simmons was 17 at the time.

The Missouri Supreme Court struck down Simmons's death sentence, citing the US Supreme Court's 2002 Atkins decision barring execution of the mentally retarded. The Missouri court did so even though the US Supreme Court had not yet addressed its 1989 precedent upholding the juvenile death penalty. In effect, the Missouri court assumed a power reserved exclusively for the US Supreme Court - the power to interpret the US Constitution.

In agreeing to hear the case, the high court specified two questions to be discussed during Wednesday's oral argument. The first is whether a lower court can apply its own analysis of evolving Eighth Amendment standards when the end result conflicts with existing US Supreme Court precedents. The second question is whether the country's evolving standards of decency have resulted in a national consensus that the juvenile death penalty is cruel and unusual punishment.

With the court sharply split on the issue, the answer to both questions - and the outcome of the case itself - depends in large part on the votes of Justices Sandra Day O'Connor and Anthony Kennedy. Both voted in the majority in the Atkins case in 2002, but it remains unclear how they will view the actions of the Missouri Supreme Court and whether one or both of them will be willing to extend the protections of the Atkins decision to juveniles.

"It is for this court, not lower courts, to declare whether a particular punishment has become cruel and unusual," writes Stephen Hawke, Missouri assistant attorney general, in his brief to the court. "The Missouri court's action trivializes this court's power and the command of its precedent."

In contrast, Seth Waxman, the former Clinton administration solicitor general who is now a Washington attorney representing Simmons, largely ignores the issue, addressing it only in a footnote. He urges the court to bypass the Missouri court's behavior and focus instead on the merits of the Eighth Amendment issue.

Mr. Waxman argues that much has changed in the 15 years since the high court last considered the juvenile death penalty. He says there is a better understanding of adolescent development and there has been a consistent trend among lawmakers and juries away from imposing death on juvenile offenders.

In his brief, Waxman cites research showing that adolescents are less able than adults to weigh risks, understand the consequences of actions, and control impulses. "The execution of juvenile offenders - like that of mentally retarded offenders - is both disproportionate to their personal moral culpability and contrary to national and world-wide consensus," Waxman writes in his brief.

Missouri prosecutors say the picture hasn't changed that much since 1989. There is still no national consensus opposed to the juvenile death penalty, they say. "If there is an American consensus today," Mr. Hawke writes, "it is a consensus that the states should be allowed to preserve capital punishment for use in the extraordinary case where a 17-year-old commits a particularly heinous crime."