Oct. 14
USA:
Court to consider juvenile death penalty
A divided Supreme Court on Wednesday weighed whether to ban the death
penalty for juveniles who kill, one of the highest-profile questions
confronting the justices as they continue re-examining who is subject to
capital punishment.
2 years ago, the court abolished the death penalty for the mentally
retarded by a 6-3 vote and 4 of the 9 justices went on record as saying
the court also should end the execution of offenders under age 18. But it
was unclear Wednesday if they could gain a decisive 5th vote at arguments
in the case of a Missouri man sentenced to die for robbing and killing a
woman when he was 17.
Justice Anthony Kennedy, a potential swing vote, said the United States is
one of only a handful of countries to allows juvenile executions, but he
also raised the possibility of violent gangs recruiting 16- and
17-year-old as hit men if the teenagers are shielded from the death
penalty.
"If we rule against you, the deterrent remains," Kennedy told a lawyer
representing the Missouri inmate, Christopher Simmons.
Kennedy and Justice Sandra Day O'Connor are expected to cast the deciding
votes in the closely watched case. The two moderate justices both joined
the court's liberal wing in the court's 2002 decision that executing the
mentally retarded violates Eighth Amendment protections against "cruel and
unusual punishment."
O'Connor said little Wednesday, asking a single question about the number
of states that permit death sentences for teens. One test before the court
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 when they committed their crimes.
Washington lawyer Seth P. Waxman, who served as U.S. solicitor general
during the Clinton administration, represented Simmons on Wednesday.
Waxman said an evolving consensus against the juvenile death penalty and
new research on brain development should persuade the court to abolish the
practice.
But James R. Layton, Missouri's state solicitor, countered that juries and
state legislatures should decide whether juveniles who kill are sentenced
to death. He pointed to a Virginia jury's decision to spare convicted
sniper Lee Boyd Malvo a death sentence for carrying out the deadly
Washington-area attacks when he was 17, with jurors citing Malvo's age and
the influence of an older co-defendant.
"There are 17-year-olds who are equally culpable to those who are 18, 20,
25, or some other age," Layton said. He told the justices that they should
not be swayed by the "marshaling of untested evidence" or international
opinion, saying the decision "needs to be based on the mores of American
society."
The United States is one of only seven of countries that have allowed
executions of young offenders since 1990, and the other countries -
including China, Iran and Pakistan - have virtually abandoned the practice
to conform with international human rights treaties.
The Supreme Court had repeatedly refused to revisit the question of
executing juveniles, but its hand was forced last year when the Missouri
Supreme Court overturned the death sentence of Simmons, now 28. He was 17
in September 1993 when he broke into the home of Shirley Crook, robbed
her, bound her and pushed her from a railroad bridge to her death.
Simmons confessed to the killing, which he planned with 2 teenage friends
after assuring them that "their status as juveniles would allow them to
get away with it," court records show.
Waxman argued Wednesday that new developments in brain research, and
Simmons' own statements, show that adolescents do not fully grasp the
possible ramifications of their actions.
"No mature adult would have thought 'I can get away with this,' " Waxman
told the court.
Chief Justice William Rehnquist and Antonin Scalia appeared unswayed.
(source: Baltimore Sun)
********************
Death Penalty Case Gets Skeptical Hearing
A plea to declare capital punishment for juvenile offenders
unconstitutional received a skeptical hearing at the Supreme Court
yesterday, as one of two justices likely to be pivotal to the outcome
repeatedly voiced doubts.
Justice Anthony M. Kennedy observed that he was "troubled" that a ban
might lead gang leaders to use 16- or 17-year-olds as "hit men."
"I'm very concerned about that," Kennedy told Seth P. Waxman, a former
U.S. solicitor general who was arguing on behalf of Missouri death row
inmate Christopher Simmons, who faces execution for a murder he committed
at 17. "I'm talking about the deterrent value of the existing rule."
Waxman replied that deterrence does not work with juvenile offenders
because they "are impulsive and subject to peer pressure."
But Kennedy responded that many 17-year-old offenders were "ringleaders"
in brutal, calculated murders, citing a friend-of-the-court brief filed by
a group of states that wish to retain a death penalty for juveniles.
Kennedy said the brief was "chilling reading."
Kennedy's vote is crucial because 4 justices, John Paul Stevens, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer, have already declared
their belief that executing those who commit crimes while under the age of
18 is "cruel and unusual punishment."
The records of Chief Justice William H. Rehnquist and Justices Antonin
Scalia and Clarence Thomas suggest that they think the issue should be
left up to the states.
That leaves only Kennedy and Justice Sandra Day O'Connor as possible 5th
votes for a ban. O'Connor was mostly silent in yesterday's hearing.
The Supreme Court upheld capital punishment for 16- and 17-year-old
offenders in 1989. It banned it for those 15 and under in 1988.
Until now, the court's position has been unaffected by its 2002 decision
to ban the death penalty for the moderately mentally retarded. In that
case, Kennedy and O'Connor joined Stevens, Souter, Ginsburg and Breyer.
The court found that a national consensus against the practice had formed
since 1989. The best evidence for that, the court ruled, was that the
number of states banning the death penalty for the retarded had grown from
2 to 13.
Many opponents of the death penalty immediately recognized that a similar
argument could be applied to juveniles.
Yet in the 2002 opinion, written by Stevens, the court seemed to warn that
it was not ready for that, contrasting the strong trend against executing
the retarded with the fact that, between 1989 and 2002, only 2 states had
raised their minimum ages for capital punishment to 18.
3 times in the past two years, the court refused to hear appeals from
death row inmates who had killed while they were juveniles -- despite a
strongly worded dissent in one case from Stevens, Souter, Ginsburg and
Breyer.
Last year, the court actually reinstated the death penalty of a juvenile
offender in Oklahoma after a federal appeals court had blocked it. The
vote was 5 to 4, with Kennedy and O'Connor in the majority.
The court intervened in the Simmons case only after the Missouri Supreme
Court threw out Simmons's sentence last year on the grounds that the 1989
precedent had, indeed, been superseded by the 2002 case.
Waxman pressed a similar argument yesterday. He told the court that the
execution of juvenile criminals conflicts with a "robust consensus"
reflected in the recent decisions of several states to ban the practice
and in the decreasing frequency with which juries impose the death penalty
on those under 18. Scientific evidence shows that the areas of the brain
in charge of judgment and impulse control are incomplete in adolescents,
he said.
Death is the wrong punishment for crimes that reflect "the transient
psychosocial characteristics that rage in adolescents," Waxman said.
But Kennedy noted that the American Psychological Association -- which
told the court in a brief in this case that adolescents are too immature
to qualify for capital punishment -- had also said in a case about
parental notification for abortion that teenagers are old enough to make
such a decision on their own. "They flip-flopped," Kennedy said.
Waxman said there is no inconsistency because "what was at issue in that
case was the competency to decide," while the question in this case
involves "factors why adolescents are less morally culpable."
He urged the court to act based on a "worldwide consensus" against the
death penalty for juveniles, noting that, except for the United States,
all 110 countries that have capital punishment do not apply it to those
under 18.
States that permit it "are not just alone in this country, they are alone
in the world," he said.
On this point, Kennedy appeared to sympathize with Waxman, asking Missouri
state Solicitor James R. Layton: "There seems to be a very substantial
demonstration that world opinion is against us. . . . Does that have a
bearing on what's 'unusual' " punishment?"
Layton replied that "what matters" is U.S. legislation.
O'Connor's only remark hinted at some openness to Waxman's position.
Addressing Layton, she noted that the number of states that either do not
have capital punishment or set the age at 18 is "about the same" as the
number of those with bans on executing the retarded in 2002, which was 30.
"There is no inexorable trend here," Layton replied.
The case is Roper v. Simmons, No. 03-633. A decision is expected by July.
(source: Washington Post)
**************************
Court should bar juvenile executions
A sharply divided Supreme Court on Wednesday heard arguments for and
against applying the death penalty to 16- and 17-year-olds. It should not
even be a close call.
In addition to the United States, the nations with laws allowing the
execution of minors include such progressive places as China, Pakistan,
Saudi Arabia and Iran. In this country there are 19 states, including
Kentucky, that allow executions of defendants under 18. There are 70 such
defendants now on death rows around the country awaiting execution.
We're talking about teenagers who can't legally drink, vote, join the army
or be on juries because society says they don't yet have the maturity to
do those things.
This is an obscene inconsistency - one that only the Supreme Court can end
with a ruling in the case of Christopher Simmons. There is nothing
sympathetic about Simmons. In 1993, Simmons, then 17, and an accomplice
burglarized the home of Shirley Crook. When the victim recognized them,
they bound her with duct tape, tossed her in a car and drove around for
about an hour before tossing the terrified and still bound woman off of a
bridge. Simmons was sentenced to death, but the Missouri Supreme Court
overturned the sentence last year. His younger accomplice got life.
The question isn't whether the death of Shirley Crook was horrible, or
whether Christopher Simmons is an unrepentant monster. The question is
whether executing a minor is cruel and unusual punishment because a minor
does not have the maturity to think or act like an adult. 2 years ago the
court used similar reasoning in a 6-3 decision that outlawed executing
defendants who are mentally retarded. The court already has barred
executions of those who committed crimes when they were under 16.
During arguments Wednesday, justices noted the opinions of many world
leaders, Nobel laureates and diplomats who urged them to ban juvenile
executions. Judge Ruth Bader Ginsburg quoted from the Declaration of
Independence, which says the United States should "show a decent respect
for the opinions of mankind."
We should not stand alone in the world on this issue.
(source: Editorial, Cincinnati Enquirer)
************************
Supreme Court must uphold teenage execution eligibility
The United States Supreme Court yesterday heard arguments concerning the
constitutionality of teenage executions. The case is centered on
Christopher Simmons, who murdered a woman in 1993 at the age of 17. He and
his lawyers hold that he committed the crime at too early an age to suffer
execution, which would constitute cruel and unusual punishment.
While compassion for the youth of America is an important agenda of the
modern day, we must not fail to recognize that the youth are not
universally incapable, inept or mentally underdeveloped - we cannot
ubiquitously excuse them from responsibility for their actions. The
Justices of the Supreme Court should uphold Simmons sentence, and
reiterate current precedent limiting capital punishment to those over the
age of 16.
One must admit that the teenage years are a formidable challenge for many
of Americas youth, forcing many through emotional turmoil and social
stress that none too few adults would rather forget. Indeed, emotions and
social pressure can easily sway decision making, while some of Americas
young teens may well be incapable of fully developed and rational thought.
Society must allow for the difficulties of early teenage life, and admit
that teens are almost inherently prone to bad decisions or mistakes.
Compassion for their struggles and inexperience asks little of us, and of
all Americas criminals, it would seem the young stand the best chance of
rehabilitation. One would surely abhor to see the 12-year-old girl who
allegedly killed her mother last week because of domestic disciplinary
actions executed for her crime. Those under 16, therefore, should not face
death sentences.
But there comes a time when teenagers - young adults - have adequately
developed the capacity for rational thought and sensible decision making.
Certainly, American teens by the age of 16 are by and large fully capable
of such processes, and should have a full understanding of right and
wrong.
Responsible choices are obviously not beyond the average 16-year-old. By
16 American teens are, in fact, already actively making irreversible and
life-changing decisions. Most are driving, balancing their lives and
others in a thousand tiny decisions every day. Many are deciding which
college to attend, while still others are setting the course of their
career or trade. If they are to be trusted with such responsibilities,
they must also commit themselves to observing the law. It is by this stage
in their lives that society has an absolute right to expect them to abide
by the law and live constructive lives.
In light of such an expectation, teens over the age of 16 must face the
full consequences of capital crime. When teens can ruthlessly cut down
their classmates after months of plotting - premeditation - their actions
cannot be excused by emotional distress or hormones. American teens have
sadly proven time and again that they are capable of the same cold,
calculating plots as those twice or three times their age. When they act
in such a manner, age is no more than a number.
Capital punishment must remain an option for American prosecutors involved
with defendants over the age of 16. This is not to say it need always be
applied. Indeed, as in every capital case, the application of the death
penalty must be deeply considered and cautiously employed. Subsequently,
the courts should seriously explore exactly how deserving a 16-year-old
teen is of capital punishment. Personal maturity and social circumstances
are perfectly valid considerations in capital cases. No doubt, many will
justifiably escape death sentences through compassionate rulings on their
behalves, or through appellate intervention. But we cannot universally
discount the capacity for deeply criminal, depraved and yet merciless
rational thought amongst young adults. All too often, such teens are no
less incapable, developed or mature than fully-grown adults.
(source: The (Va. Tech) Collegiate Times)
*******************
Supreme Court must end teenage executions
On Wednesday, Oct. 13, the Supreme Court considered the latest and perhaps
most controversial challenge to this countrys highly publicized death
penalty stance. The focus of this debate will be to decide if the
execution sentence of murderers under the age of 18 is unconstitutional.
The latest judicial review of the death penalty comes following recent
court decisions that have limited executions to capitol offenders over the
age of 16 and only those murderers who are deemed sane. These decisions
reflect a swing in the Court toward a more civilized position on
executions.
However, this progress is only coming in agonizingly small increments.
Hard line conservative Justices Antonin Scalia, Clarence Thomas, Chief
Justice William H. Rehnquist and others have dissented in regard to these
decisions and fail to recognize how hypocritical our countrys position on
the death penalty makes us appear to the rest of the world with regards to
human rights. The United States is among only a handful of countries in
the world that allows juvenile offenders to be executed. This very short
list includes Iran, Pakistan, China and Saudi Arabia. Our society is ahead
of these nations on so many other human rights issues, so why is it that
we hang onto this antiquated and cruel form of punishment?
As the leaders of the free world we have a responsibility to adopt a more
civilized posture on this issue and set an example for the rest of the
world. The goal of the criminal process is justice and rehabilitation, not
revenge. It has been thousands of years since Babylonia and Hammurabis
Code of "an eye for an eye," and yet the law has not come very far in its
evolution with respect to this issue. I understand the unrest families of
victims feel is difficult to bear, but by executing murderers in a time
where they can be safely isolated and punished only destroys our own moral
fiber. I dont need the opinions of the experts and scientists the justices
of our Supreme Court listened to on Wednesday to tell me that then
17-year-old Christopher Simmons mind was underdeveloped at the time he
kidnapped his victim and killed her by throwing her off a bridge. The
simple fact is that killing another person is wrong no matter what the
circumstances. I think the real insanity lies with this culture that
promotes human rights around the world and allows executions of
adolescents to take place inside of its own borders. In my opinion this
archaic practice is unconstitutional, unethical and undeniably wrong. For
the sake of the 70 juveniles on death row in this country I hope the
Supreme Court commutes their sentences to a life in prison where they will
suffer knowing their life is over without actually dying.
Unfortunately, it may be a very long time before this situation is
corrected and we can abolish the death penalty for good. Change comes very
slowly within our criminal justice system, but since only 16 states
execute criminal offenders, there are signs of hope. The Supreme Court
will continue to debate and draw the line as to who can be executed and
who cannot, but these decisions are all elementary. The right decision is
to abolish executions completely.
Stuart Garber----sophomore, mechanical engineering
(source: Letter, The Collegiate Times)
***************************
FOR IMMEDIATE RELEASE-----OCTOBER 13, 2004
CONTACT: Amnesty International Edward Jackson of Amnesty International
USA, 202-544-0200 ext. 302 or 202-251-3894 (cell)
Amnesty International USA Statement on U.S. Supreme Court Hearing Oral
Arguments in Roper v. Simmons Case on Juvenile Executions
WASHINGTON - October 13 - Today Dr. William F. Schulz, Executive Director
of Amnesty International USA, released the following statement as the
United States Supreme Court heard oral arguments in Roper v. Simmons, a
case that will decide if executing juvenile offenders is constitutional:
"Ours is allegedly the era of 'Leave No Child Behind,' but the U.S.
practice of sentencing juveniles to death stands in stark contrast to that
sentiment. The most extreme example of leaving a child behind is the
misguided notion that children can commit crimes so irredeemable that
society would be better off if they were dead. This is a proposition
shared only by nations like China and Iran.
Virtually every industrialized nation in the world -- even those that
still practice the death penalty -- treats children differently from
adults. Children cannot vote or buy alcohol, for example, because they are
correctly regarded as less fully developed and hence less responsible for
their actions than adults. The same rationale for placing those limits on
children, however, is utterly ignored when it comes to holding them
responsible for crimes and sentencing them to death. The Court must
correct this inconsistency and end this outdated, almost singular
practice, once and for all."
For more information on the death penalty:
http://www.amnestyusa.org/abolish.
(source: Anmesty International USA)
*********************
Justices weigh nuances of punishment for those who kill as youths
(Last of 5 parts)
Death penalty opponents asked a sharply divided U.S. Supreme Court on
Wednesday to ban the execution of juvenile killers. In a morning of
arguments as much among themselves as the advocates, the justices seemed
to agree only that they were indeed divided.
In a Missouri case that means life and death to 73 men condemned for
killing as juveniles - 29 of them in Texas - the court considered:
- Whether juveniles are mentally developed enough to be considered for the
death penalty.
- Whether the United States violates international standards as the only
country that officially permits the execution of juvenile offenders.
- Whether the court should respond to changing public sentiment about
capital punishment, as reflected in state legislative actions.
- Whether any of that should make any difference for a 17-year-old who has
committed a heinous crime.
Justice Ruth Bader Ginsburg questioned whether execution is justified for
someone who cannot legally vote, drink alcohol, sign contracts or be
drafted.
"Why not say they [anyone under 17] are ineligible for punishment under
any [adult] laws?" retorted Justice Antonin Scalia.
Nineteen states allow the death penalty for under-18 killers. Fourteen of
those states extend capital punishment to 16-year-olds. In Texas, which
has more condemned juvenile killers than any other state, the minimum age
is 17.
Half the 38 states that allow capital punishment do not allow the death
penalty for crimes committed under the age of 18.
Since 1988, the U.S. Supreme Court has banned the execution of anyone
under 16.
Even those arguing Wednesday for the juvenile death penalty expressed
reservations about executing 16-year-old killers.
"As a prosecutor, it's hard to imagine that even if I could find a law [to
justify capital punishment for a 16-year-old], that I would prosecute it,"
said Missouri State Solicitor James Layton.
Mr. Layton is appealing a Missouri Supreme Court ruling related to the
1993 murder of Shirley Crook. Ms. Crook was abducted, bound and thrown
from a bridge by Christopher Simmons, who was at the time 17. Mr. Simmons
apparently had bragged to friends that he could commit such a crime
because juvenile laws would allow him to "get away with it." He was
sentenced in 1997 to death.
In a highly unusual decision, the Missouri high court ruled that executing
Mr. Simmons would be unconstitutional. The Missouri justices relied on a
2002 U.S. Supreme Court decision forbidding executions of the mentally
retarded. The Missouri court ruled not only that juveniles are mentally
undeveloped, but also that U.S. "standards of decency" had changed.
Representing Mr. Simmons, Seth Waxman argued that new medical technology
shows that the brains of adolescents - especially the frontal lobes, which
control impulse - are still developing in the late teens.
He said juries should not be asked to determine whether a 17-year-old is
mature enough to be completely responsible for the moral dimensions of his
actions.
"Science has confirmed what we intuitively know: that [moral maturity]
comes only with the passage of age," Mr. Waxman said.
Mr. Layton argued that issues of maturity and culpability of youthful
killers ought to be left to juries, and that issues of public standards
and tolerance should be left to state legislatures. Comparing the
culpability of a 17-year-old - like Mr. Simmons - to someone who is
mentally retarded is not valid, Mr. Layton said.
"A mentally retarded person is 'not capable,' by definition," said Mr.
Layton. "That's certainly not the case here."
He also argued that it would be artificial to draw a "bright line" for
executions at age 18; that would, for instance, create a different
standard of culpability for those who are one day shy of 18.
Justice John Paul Stevens said age provides a precision that's needed for
imposing capital punishment.
"We needed a 'bright line' test," Justice Stevens said.
Two of the juvenile offenders of death row in Texas were 1 day from their
18th birthdays when the murders were committed.
Several justices seemed skeptical of the brain science offered by Mr.
Simmons' advocates. Justice Anthony Kennedy noted that some of the same
groups who now say adolescents are too immature to make moral decisions
previously have argued - especially in cases involving parental
notification - that adolescents are capable of making complex decisions by
themselves.
Chief Justice William Rehnquist told Mr. Waxman that scientific issues
should be presented to juries or legislatures, rather than the high court.
The case has attracted widespread international attention, including a
"friend of the court" brief from the European Economic Union opposing the
juvenile death penalty.
Justices Kennedy, Rehnquist and Scalia wondered openly whether they should
consider international norms at all.
When Mr. Waxman argued that the United States is the only government that
allows execution of juvenile offenders, Justice Scalia reacted stiffly.
"We are also the only one with a jury system. Does that mean we should not
have trial by jury?" the justice asked.
Questioning from the justices suggested that they remain divided along the
same lines as when they last considered age and execution. 2 years ago,
they declined to reconsider a Kentucky death sentence that they had
narrowly affirmed in 1989. 4 justices - Justices Ginsburg, Stevens, David
Souter and Stephen Breyer - came out against the death penalty both times.
Justice Sandra Day O'Connor, who provided the swing vote in the 2002
mental retardation case, was reserved in her questions Wednesday. In one
of her few comments, however, she hinted that she might be willing to
prohibit executions of some juveniles. She noted that the number of states
banning the execution of juvenile offenders has risen sharply since 1989.
"Everyone's eye is on Justice O'Connor," said Rob Owen, an adjunct
professor at the University of Texas law school. "There is some sense she
may be more open to re-examining the issue."
(source: Dallas Morning News)
***************************
The Young and the Reckless----The Supreme Court contemplates executing
juveniles.
The Supreme Court press gallery is positioned directly across from the
massive Adolph Weinman frieze on the south wall of the ceremonial
courtroom-the one with Moses, packed in amidst "great lawgivers of
history," Ten Commandments in hand. Following yesterday's decision by the
court to hear a pair of Ten Commandments cases, reporters around me are
speculating about what will happen to the poor Decalogue. Someone suggests
the Supremes should just ditch the first four commandments as a matter of
federal constitutional law. (Weinman's already done this by coyly draping
Moses' beard and robe anywhere on the tablets "God" might appear.) Someone
opines that Mohammed and the Quran probably need to come down as well. I'm
hoping one of the justices will knit a teeny little commandment-cozy, to
slip over the statue.
Today's oral argument in Roper v. Simmons asks whether the execution of
people who were 16 or 17 years old when they committed their crimes
constitutes "cruel and unusual punishment" under the Eighth Amendment.
Obviously the Founders didn't think executions of adolescents were cruel
and unusual, so we know where Scalia's vote will go. But Scalia is cruelly
pinned beneath the ruling in Trop v. Dulles-a 1958 case holding that the
Eighth Amendment "must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." Unlike much of the
court's jurisprudence, this analysis does not require poring over texts or
channeling Thomas Jefferson. Instead, the court is asked to blink directly
into the bright light of science and current events to determine whether
"evolving standards of decency" mandate a change in the notion of what is
cruel and unusual. Among the justices who believe the human race is
evolving in what is decidedly the wrong direction, this is pure hell. Even
contemplating the New Age notion that a "teenage brain" exists must be
cruel and unusual punishment for Clarence Thomas. But this is the test.
So, away they go.
Christopher Simmons was 17 when, in 1993, he robbed and abducted Shirley
Crook. He tied and gagged her with electrical wire and duct tape and threw
her off a railroad bridge from which she plummeted and drowned. Simmons
evidently bragged to friends that he'd get away with this since he was a
minor. The jury disagreed, convicting him of 1st-degree murder and
sentencing him to death.
The last time the Supreme Court heard a case about the constitutionality
of executing 16- and 17-year-olds was in 1989-when it decided Stanford v.
Kentucky. A plurality of the court determined then that there was no
social or historical consensus that the death penalty was cruel and
unusual for teens of those ages, even though in 1988 the court had
determined that such a consensus existed for offenders under 15. In 2002
the court voted 6-3 to ban the execution of the mentally retarded in
Atkins v. Virginia, using the "evolving standards" test to find that most
states no longer believed it acceptable to execute them and that the
mentally retarded had diminished culpability for their crimes.
The Atkins decision somehow emboldened the Missouri Supreme Court-that was
deciding Simmons' case-to just overrule the Supremes' original Stanford
decision completely. Leaning on the reasoning in Atkins, the Missouri
court decided that a new consensus walks among us and that the Supreme
Court had missed the boat. Nine out of 10 dentists agree: It's bad to kill
teenagers.
James Layton, the state solicitor of Missouri, is here this morning to
remind the high court that it's been dissed. He argues that the proper age
to be executed should be left in the hands of legislatures and that the
issue of an individual's culpability and maturity are best left to a jury.
"Some 17-year-olds are culpable," he says, "and some are not."
Justice Ruth Bader Ginsburg suggests that society treats those under 18 as
not-adult in dozens of ways-they are unable to vote, serve on juries or in
the military, or buy tobacco. "Why would you be death-eligible at 18 but
not eligible to be a member of the community?"
Justice Antonin Scalia heads the other way: "Why stop at the death
penalty?" he asks. "Why not say anyone under 18 is immune from all
punishment?" (He doesn't really mean this. This is just his way.)
Everyone's eyes are on Sandra Day O'Connor again today. Hers was the swing
vote in Thompson v. Oklahoma-the case banning executions for 15-year-olds.
Her concurrence was also the key to Stanford v. Kentucky-the case allowing
executions for 16-year-olds. We know four justices already oppose killing
minors because in 2002, John Paul Stevens, David Souter, Ruth Bader
Ginsburg, and Stephen Breyer all dissented when the Supremes refused to
hear a case on this issue. They did not mince words: "The practice of
executing such offenders is a relic of the past and is inconsistent with
evolving standards of decency in a civilized society. We should put an end
to this shameful practice."
So, they need one more vote. But O'Connor says virtually nothing today.
She asks a single question of Layton: "Isn't there about the same
consensus that existed in Atkins [the case about the mentally retarded]?
Aren't we obliged to look at that?" That's all she says, folks. Read your
tea leaves here.
Justice Anthony Kennedy, the other swing vote in Atkins, asks whether the
fact of adolescence can ever be used to increase penalties. Layton says
it's only used as a mitigating factor. So, Ginsburg reads at length from
the transcript of Simmons' sentencing, in which the prosecutor threatened
the jurors with: "Think about it. He's only 17 years old. Isn't that
scary? Mitigating? Quite the contrary!" Ginsburg suggests his youth was
used to demonize Simmons.
Kennedy then turns to the real nut of the problem: "Let's focus on the
word 'unusual.' Forget 'cruel.' There is substantial demonstration that
the world is against us, at least among the leaders of the European Union.
Does that have a bearing on whether this is unusual?"
The "substantial demonstration" to which he refers includes amicus briefs
from 48 foreign countries, assorted Nobel Peace Prize winners, and some
high-octane religious, medical, and human rights groups, all reminding the
court that no other civilized country permits juvenile executions and that
our policy violates the U.N. Convention on the Rights of the Child. A
convention only the United States refuses to ratify.
Layton says decisions on the meaning of the Eighth Amendment should not be
based on foreign opinion.
Breyer asks, "Do you have any indication of whether Madison or Jefferson
would have thought it was totally irrelevant what happened elsewhere in
the world?" Layton says Jefferson believed the United States was leading
the world but doing so through legislation, not the courts.
Scalia adds, "And what did John Adams think of the French?" Layton replies
that he didn't think very highly of them. A reminder that blaming all of
life's ills on the French predates Fox News.
Breyer notes that if you look at the past 10 years, only 3 states have
executed juveniles. Texas killed 11, Virginia killed 3, and Oklahoma
killed two. If even the states that allow it don't do it, isn't that a
consensus?
Seth Waxman represents Christopher Simmons, and he starts the morning
looking like a guy who only needs one vote. When he says that since
Stanford a consensus has emerged, it becomes clear that Scalia won't be
that one vote: "Does the constitutional calculus ever move in the other
direction?" Scalia asks, meaning, is there ever a consensus toward killing
more rather than fewer people?
Waxman soon makes an odd word choice, saying the "world consensus"
represents "the better view in Europe." Chief Justice William H.
Rehnquist, previewing the part of George W. Bush tonight, shoots back,
"What suggests it's a 'better view in Europe'?"
Waxman points out that the vast scientific evidence amassed in this case
to suggest that teenage brains are still undeveloped didn't exist in 1989
when the court decided Stanford. So, the chief justice asks whether all
this psychological evidence was introduced at trial. "I would think if you
want us to rely on it, it should be introduced at trial. Not just in an
amicus brief."
Waxman is a bit stuck. For one thing, some of this research came about
after Simmons' 1997 trial. For another, as he points out, the question of
whether executing juveniles is constitutional wasn't an issue at trial. It
was state law and what the jury was told to work with. The chief justice
is unimpressed. And Kennedy, who seems to be searching for a reason to
vote for killing teens, agrees all this psychological evidence should have
been introduced at trial. Waxman tries to say these are legislative,
constitutional facts, having nothing to do with Simmons' murder charges.
So, Kennedy flat-out tells him, "Suppose I am not persuaded by this
argument. Do you lose the case?"
These are never felicitous words to a man looking for just one vote.
Waxman says teenagers are like the mentally retarded in that they cannot
properly communicate with counsel or express remorse and because their
characters will change so much. On trial, years later, jurors see a
different person.
Scalia says: "I thought we punish people for what they were, not are. To
say after the crime that he's come to Jesus . we don't let them off.
You're never the same person that committed the crime."
Kennedy finally hits on his reason to vote against the punk kids: "A
number of juveniles run in gangs," he says. "Some gang members are over
18. If we rule in your favor, wouldn't that make 16-, 17-year-olds subject
to being hit men in gangs? I'm very worried about that."
Kinder to execute them instead.
Kennedy cites the "chilling" amicus brief filed by the state of Alabama.
"I wish all the other amicus that had signed on had read it," he frets.
Stupid Dalai Lama. The Alabama brief is hideous indeed-a detailed catalog
of the junior Jeffrey Dahmers who have terrorized the state of Alabama.
The truism-that kids who kill folks are really, really terrible-is not
lost on Kennedy.
Layton's rebuttal is impressive. Suddenly he can see himself pulling this
case out. He uses Lee Boyd Malvo-spared the death penalty by a Virginia
jury-as an example of how the current system works. Jurors can tell
whether someone is immature or culpable.
Dissenting in Atkins, Justice Antonin Scalia once raged: "But the Prize
for the Court's Most Feeble Effort to fabricate 'national consensus' must
go to its appeal (deservedly relegated to a footnote) to the views of
assorted professional and religious organizations, members of the
so-called 'world community' . the views of professional and religious
organizations and the results of opinion polls are irrelevant. Equally
irrelevant are the practices of the 'world community,' whose notions of
justice are (thankfully) not always those of our people."
This is an argument George Bush makes 5 times every debate. (Watch for it
again tonight.) While we might agree that world opinion, international
law, and scientific truth can't single-handedly dictate American law or
policy, the new patriotism holds that they cannot even illuminate it.
(source: Slate; Dahlia Lithwick is a Slate senior editor)
********************
Supreme Court asked to draw death penalty line at 18----Old enough to be
executed?
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, yesterday was 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
cutoff 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 said the life sentence that a Virginia jury imposed on Lee Malvo,
the younger of two men convicted in the 2002 Washington, D.C., area sniper
shootings, showed that jurors could be trusted to make allowances for a
defendant's youth.
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.
In their questions yesterday, most justices hewed to well-known positions.
Three conservative justices -- Chief Justice William Rehnquist and
Justices Antonin Scalia and Clarence Thomas -- are thought to oppose a
decision that would raise the age eligibility for execution. When Waxman
suggested that adolescents can change, Scalia shot back: "Everybody
changes." Rehnquist complained to Waxman that his argument about the
"transience" of adolescent character was a "purported scientific fact
[that] ought to have been tested somewhere, and not given to us in a
brief."
Thomas, as usual, did not ask any questions.
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 cutoff 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: Pittsburgh Post-Gazette)
