Oct. 12
USA:
Jeffery Fagan's Research on Death Penalty for Juveniles to Play Role in
Roper v. Simmons Case----Law Prof Fagan Sends Research to High Court
New research from Columbia law professor Jeffery Fagan will likely come
before the United States Supreme Court beginning tomorrow.
Oral arguments begin tomorrow for Roper v. Simmons, a critical death
penalty case now before the Supreme Court. The Justices must determine
whether it is constitutional to execute individuals who were under 18
years of age when they committed capital crimes, a practice currently
permitted in 20 states.
Last March, Fagan and Columbia research analyst Valerie West began
compiling the evidence needed to decide whether there is indeed an
"evolving standard of decency" that signals a change in the country's
attitudes regarding the execution of juveniles. If a societal shift has
occurred, juvenile executions may now be considered cruel and unusual
punishment.
"We had to put together the kind of data from existing sources that would
answer the main question that the judges would ask," Fagan said. "Are
judges and juries rejecting the use of death penalty for juveniles? And
the answer is yes."
The case before the court comes from Missouri and surrounds Christopher
Simmons, who was just 17 when arrested for murdering Shirley Crook. In
August 2003, the Missouri Supreme Court overturned his death sentence on
two main grounds. First, the Court ruled that juveniles "lack the capacity
or maturity to be eligible for the death penalty." Second, the state
justices argued that due to "evolving standards of decency in a civilized
society," the execution of juveniles now constitutes cruel and unusual
punishment and thus violates the Eighth Amendment.
In rendering this decision, the Missouri Court relied on precedents set by
the highly influential 2002 Supreme Court ruling in Atkins v. Virginia. In
the Atkins case, the Justices used the same arguments to render
unconstitutional the execution of mentally retarded persons. Given the
legal parallels between capital cases involving juveniles and the mentally
retarded--the question of mental capacity and culpability is central to
both--it became widely recognized that it was only a matter of time before
the constitutionality of executing juveniles would be challenged based on
the Atkins ruling.
In response to the Atkins ruling in December 2003, Fagan published an
article in the New Mexico Law Review in which he concluded "because
defendants with diminished competence and culpability, like the mentally
retarded, are immature at age 18 and beyond, there is sufficient evidence
in social science to create a categorical exemption from capital
punishment for adolescents who commit murder before the age of 18."
Fagan's research tells a convincing story. According to his forthcoming
article, "Decline of the Juvenile Death Penalty," the number of juvenile
death sentences has dropped sharply from its peak in 1994 of 15 sentences
to just 1 in 2003 and 2 in 2004. The decline remains significant even
after controlling for other variables.
Moreover, seven state legislatures have expressly prohibited capital
punishment for juveniles since the issue was last considered in 1989. Out
of the 38 states that permit the death penalty, a total of 18 now prohibit
the execution of minors.
On Oct. 4, The New York Times cited this case as one of the most urgent
and significant before the Court this term. According to the Times, " 73
people are currently on death row in 12 states, 1/3 of them in Texas, for
crimes committed before the age of 18."
"Using 2 types of multivariate statistical analyses," Fagan wrote in the
article, "we found that the decline in juvenile death sentences is
statistically significant ... after we control for competing explanations
for its decline."
(source: Columbia Spectator)
**********************
Juvenile Death Penalty Faces High Court Test
Shirley Crook was home alone on a September night when she heard a noise
at the back of her house and saw a hallway light come on. She sat up in
bed and called out, "Who's there?"
Within moments, 2 teenage boys pounced on her, bound her with duct tape,
threw her in the back of her minivan and drove her to a remote state park
in suburban St. Louis. At the park, the two assailants covered Crook's
head with a towel, tied her hands and feet again and threw her off a
railroad trestle into the Meramec River, where she drowned.
11 years later, Christopher Simmons, one of the teenage assailants, is
asking the U.S. Supreme Court to set aside permanently the death sentence
he received after a jury convicted him of killing Crook. His lawyers argue
that, by contemporary standards, executing people under age 18 violates a
constitutional ban on "cruel and unusual" punishment.
Simmons was 17 at the time he and a younger accomplice killed Crook. The
Missouri Supreme Court ruled 4-3 that Simmons' death sentence should be
overturned.
The U.S. Supreme Court case, which will be argued Wednesday, will put the
death penalty for juveniles on trial in a hostile court of world opinion
and a climate of shifting U.S. attitudes.
Every other democratic nation in the world prohibits the execution of
juveniles. In the United States, 4 of the Supreme Court's nine justices
are on record as opposing death sentences for juveniles, but it is unclear
if a fifth justice is willing to join them to form a majority.
A Supreme Court ruling in Simmons' favor would significantly restrict the
use of the death penalty in the United States. Nineteen states permit the
execution of people who were 16 or 17 when they committed serious crimes,
such as murder, and their laws would be affected by such a ruling.
Connecticut is not among them.
The court's opinion about who should be subject to the death penalty has
evolved over the years, based in part on the justices' reading of public
attitudes, former Solicitor General Kenneth W. Starr said. He believes the
court will proceed cautiously. "This court tends to mirror our culture,"
he said. "It tends not to drive our culture."
Peter J. Rubin, a Georgetown University expert on constitutional law, said
the court's ruling will be important because of "what it says about our
nation's values." Neither Rubin nor Starr was willing to predict how the
court would rule.
Many experts think it is time for the high court to reverse a 15-year-old
ruling that allows the death penalty for juveniles. The American Bar
Association, the American Medical Association and the NAACP Legal Defense
and Educational Fund have joined more than a dozen Nobel Peace Prize
recipients and 48 nations to urge the court to take the decisive step. The
foreign governments include Britain, France, Italy, Spain, Germany and
Ireland.
That may look like a consensus to some, but not to Jeremiah W. Nixon,
attorney general of Missouri, who is defending the right of states to
impose the death penalty on juveniles. In papers filed with the high
court, Nixon wrote:
"The murder [of Crook] was outrageously and wantonly vile, horrible and
inhuman. ... If there is an American consensus today, 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."
In 3 key death penalty decisions over the last decade and a half, the
Supreme Court has zigzagged:
In 1988, it ruled that the execution of juveniles 15 and younger at the
time of their crimes violated the Eighth Amendment prohibition against
cruel and unusual punishment.
In 1989, it held that the Eighth Amendment does not bar the death penalty
for crimes committed by those who were 16 or 17 at the time.
In 2002, it cited evolving legal standards and new findings in social
science as the basis for concluding that a national consensus had emerged
against executing the mentally retarded and that such penalties now
constitute cruel and unusual punishment.
In overturning Simmons' death sentence, the Missouri court said the logic
of the Supreme Court's 2002 ruling on the mentally retarded should apply
to juveniles as well. The Missouri court reduced Simmons' sentence to life
in prison without eligibility for probation or parole. His accomplice was
too young for the death penalty under state law. Nixon appealed and now is
seeking to get Simmons' death sentence reinstated.
Last year, the Supreme Court refused to review its 1989 decision on the
execution of 16- and 17-year-olds. But 4 justices signed an unusual
statement saying they were ready to end the "shameful practice" of
executing juvenile criminals under 18.
"The practice of executing such offenders is a relic of the past and is
inconsistent with evolving standards of decency in a civilized society,"
Justice John Paul Stevens wrote. Joining Stevens were Justices David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justices Sandra Day
O'Connor and Anthony M. Kennedy are considered the most likely to join in
opposing juvenile executions.
Former Solicitor General Seth P. Waxman, who represents Simmons, said that
since the Supreme Court's 1988 opinion a "clear national consensus" has
developed against the execution of juveniles. As evidence, he said that
since 1988 7 states have advanced the minimum age for the death penalty to
18.
Currently 19 states have established the minimum age of 18 for the death
penalty, said Victor L. Streib, a law professor at Ohio Northern
University. 14 states have set the minimum at 16 and 5 at 17. 12 states do
not permit executions.
In recent years, Streib said, the rate of juvenile death sentences has
declined significantly. 7 death sentences were imposed on juveniles in
2000 and 2001, 1/2 the typical rate for the preceding 6 years. Since then
the numbers have continued to drop. Currently, 73 juveniles are on state
death rows.
Connecticut, which has an 18-year-old minimum age for executions, is not
directly involved in the case. 8 states have filed papers urging the high
court to prohibit the death penalty before 18; 3 states argue "there is no
justification" to exclude 16- and 17-year-olds from the death penalty.
In addition to his argument about changing social values, Waxman contends
that medical science has evolved since 1988 and can now demonstrate that
juveniles "have not yet fully developed the capacities for reasoning,
judgment and control that are necessary to act with the level of
culpability justifying the ultimate punishment."
In papers filed with the Supreme Court, former President Jimmy Carter,
former Soviet President Mikhail Gorbachev, the Dalai Lama and other Nobel
laureates raise another reason for opposing the death penalty for
juveniles. "The prohibition of the juvenile death penalty is widely
recognized as a rule of customary international law," the Nobel laureates
said.
The laureates' views could be important, Georgetown's Rubin said, because
the Supreme Court appears to be taking increasing note of international
opinion in deciding cases. Writing for a group of former U.S. diplomats,
Harold Hongju Koh, dean of the Yale Law School, said that in the last four
years only five nations are known to have executed juveniles - the
Republic of the Congo, China, Iran, Pakistan and the United States.
Continuing to execute juveniles in the United States strains diplomatic
relations with close American allies and places U.S. diplomats on the
defensive in their dealings with other nations, Koh said on behalf of the
diplomats.
Nixon, the Missouri attorney general, contends that opinions about the
death penalty in the United States have not changed that much since 1988.
"The social question of the minimum age at which capital punishment can be
imposed - even for the most heinous crimes - is not one that can be
answered with any certainty," Nixon said in court papers. Thus, Nixon
maintains that Missouri's decision to set the death penalty age at 16
"should be given substantial deference."
Nixon added: "Any such [minimum] line is to some degree imprecise. If the
courts push further into the business of such lines, they will inevitably
be faced with more and more questions. If the line is 18, why not 21? Or
35?"
Recently, critics of the death penalty have tried to create sympathy for
Simmons by releasing interviews in which he says he was abused by his
stepfather, started using drugs at 15 and began committing minor crimes to
pay for his habit. "I don't think I ever had any aspirations or role
models that stand out for me to mention," Simmons said in one of the
interviews.
In another, Simmons apologized "for all the suffering" he had caused and
said he had accepted God into his life. "I believe that life is really a
matter of moments sharing love with God," he said.
The darker side of Simmons' life comes from court documents that describe
him going to parties every night as a teenager and drinking until he
passed out. The documents also say he plotted with friends to burglarize a
house and kill the occupants and told others that "they could do it and
not get charged for it because they are juveniles."
(source: Hartford Courant)
************************************
Teen killers' executions weighed
Missouri jurors convicted Christopher Simmons of a murder they called
"vile, horrible and inhuman," and how could anyone blame them?
Simmons, then 17, burglarized a neighbor's home one night in September
1993. After the neighbor, 46-year-old Shirley Crook, recognized him,
Simmons and his 15-year-old accomplice hogtied her with her bathrobe belt,
drove to a nearby park and pushed Crook off a railroad trestle into a
river, where she drowned.
At Simmons' trial, her husband, Stephen, told jurors that his wife feared
heights and must have been terrified as the boys dragged her to the
trestle. Simmons, according to a friend's testimony, had bragged days
earlier that he could kill someone and avoid execution because he was
younger than 18 years old.
Maybe. Jurors in St. Louis County gave Simmons' accomplice, Charles
Benjamin, a life sentence. But Simmons, 5-foot-8 and 145 pounds at the
time of the crime, was sentenced to death. Missouri was one of 20 states
that allowed the execution of killers who committed their crimes at age 16
or 17 - before the state Supreme Court threw out Simmons' death sentence
and banned such executions.
On Wednesday, the U.S. Supreme Court will take up the Simmons case and
consider a question that could affect 73 death-row inmates across the
nation who committed their crimes before age 18: whether executing such
inmates amounts to "cruel and unusual punishment," which is forbidden by
the U.S. Constitution's Eighth Amendment.
It is terrain that the high court has visited before. In a 1988 case, the
court struck down death sentences for 15-year-olds. A year later, though,
it upheld the penalty for killers who were 16 or 17 when they commit their
crimes.
In the Simmons case, opponents of capital punishment are asking the court
to reverse its 1989 decision.
They say recent studies of the brain indicate that juveniles are less
capable of understanding the consequences of their crimes than are older
people. And society's "standards of decency," they say, have changed in
the past 15 years. That means executions that were found constitutional
before are unacceptable now, they say.
"Evolving standards of decency" is the rationale the court has used in
striking down other punishments that were once deemed constitutional.
In a 1989 case, the justices upheld the execution of mentally retarded
killers. But two years ago, the court voted 6-3 to strike down the
practice after finding that society now disapproves of such executions.
Legal analysts believe that by agreeing to hear the case, the court is
signaling that the same reasoning might apply to the death penalty for
juvenile killers.
"Every case (involving a juvenile killer) that has come to the court in
the past 15 years has made the same argument, and this is the first one
they've chosen" to hear, says Victor Streib, a law professor at Ohio
Northern University in Ada whose research on the subject has been cited by
both sides in the Simmons case. "So why has lightning struck now? I have
to believe that a majority of (the) justices thinks that standards really
have evolved."
Missouri Assistant Attorney General Stephen Hawke disagrees. He says the
Missouri Supreme Court's decision to strike down Simmons' death sentence
was based on erroneous research.
During the past 15 years, only 2 states have raised their minimum age for
execution to 18, Hawke wrote in a brief. That suggests that there is no
"new national consensus" that the death penalty for juvenile crimes is
inhumane.
Hawke says that some underage killers may not merit the death penalty, but
that juries should continue to be allowed to make that decision.
In a brief filed for Simmons, St. Louis attorney Jennifer Herndon said
that "contemporary morality rejects the punishment of death for juvenile
offenders." Herndon noted that although 20 states, including Missouri,
have a death penalty for juvenile killers, only Texas, Oklahoma and
Virginia have carried out such executions in the past 10 years.
She said juries have been increasingly reluctant to hand out death
sentences to juvenile killers. In 1999, she said, 14 juvenile killers were
sentenced to death. Last year, only one such sentence was issued.
Herndon also noted a "worldwide revulsion" against the practice. According
to the Death Penalty Information Center in Washington, D.C., only the USA,
Somalia, Iran and Congo permit executions for juveniles' crimes.
The European Union, the Council of Europe and the bars of England and
Wales have filed briefs with the Supreme Court arguing against the
juvenile death penalty. Their presence in the case invites the justices to
enter another contentious area: the role of international law in the
Supreme Court's decision-making. Conservatives and liberals on the court
have clashed in recent cases over whether, and how much, international
opinions should influence U.S. courts.
Victims' rights advocate Dianne Clements says efforts to undo the juvenile
death penalty are part of a larger effort to "chip away" at capital
punishment.
"They want us to believe that 17-year-olds are just like 3-year-olds,"
says Clements, director of Justice for All in Houston. "Oh, come on.
(Simmons) was a young man who planned and carried out a horrible murder
that took time and effort and a lot of thinking. Do you mean to tell me
that for the whole time he was doing this, his brain wasn't working as an
adult?"
(source: USA Today)
