During oral arguments before the Supreme Court last month over whether the execution of juveniles is unconstitutional, Justice Anthony M. Kennedy offered hope to those who say it is. Noting that the prosecutor in the case at hand had told the jury that adolescence isn’t a mitigating factor in deciding whether to execute someone who committed murder at age 17, Kennedy asked, “Can adolescence be anything but mitigating?”
Later, however, Kennedy asked whether abolishing the death penalty for those under 18 would prompt gangs to “make 16- and 17-year-olds their hit man? … I’m very concerned about that.”
Kennedy’s ambivalence seemed to reflect the mindset of the court as a whole, but his decision may carry especially heavy significance. With four of the nine justices wanting to abolish the death penalty for juveniles and three apparently convinced they should keep it, death penalty opponents must win over either Kennedy or Justice Sandra Day O’Connor in order to prevail.
That would mean a reversal for one of them: Both voted with the 5-4 majority in 1989 to maintain the death penalty for 16- and 17-year-olds.
Their decisions rest largely on how convinced they are that two things have significantly changed since then: society’s opinion about the appropriateness of executing juveniles, and the scientific evidence about the development of the teenage brain.
Awaiting the outcome are 72 people who sit on death rows for murders committed when they were under 18, according to the Death Penalty Information Center.
One of those people is Christopher Simmons, who in 1993 murdered a woman he didn’t know, for nothing more than a thrill. Simmons, then 17, and a 15-year-old friend broke into 46-year-old Shirley Ann Crook’s home in Fenton, Mo., bound her hands and feet, threw her in her minivan, drove to a bridge and threw her in a river, where she drowned. They stole $6.
Simmons got the death penalty; his accomplice got life in prison.
Several appeals failed to overturn the sentence. Then the Missouri Supreme Court agreed last year that the penalty violated Simmons’ Eighth Amendment protection from cruel and unusual punishment. The state appealed that decision, bringing the case of Roper v. Simmons to a somewhat reluctant U.S. Supreme Court.
Forcing the Court’s Hand
The court had been avoiding the issue, turning down two chances in 2002 to review juvenile death penalty cases. For some justices, the matter is closed: In 1988 the court declared executions unconstitutional for offenders 15 and under, but in 1989 it rejected an appeal to expand that protection to 16- and 17-year-olds. Kennedy and O’Connor joined the majority in that 5-4 decision (Stanford v. Kentucky), which found no “societal consensus” forbidding the practice.
That same year, however, the court also let stand executions of the mentally retarded – only to reverse itself in 2002, in a 6-3 decision (Atkins v. Virginia) that prompted calls for the court to take the same action on behalf of juveniles. When the court’s majority refused to hear juvenile death penalty cases that year, the four dissenting justices wrote that the reasons to ban execution of the mentally retarded “apply with equal or lesser force to the execution of juvenile offenders.”
The Missouri Supreme Court agreed: It used the Atkins decision to declare the death penalty unconstitutional for offenders under 18 – even though the U.S. Supreme Court had never made such a ruling. The American Bar Association called it “virtually unheard of” for a state court to issue a constitutional decision on an issue that had been decided on by the high court. The high court had little choice but to hear Missouri’s appeal.
When Missouri Solicitor James R. Layton and Seth P. Waxman, the attorney for Simmons, stood before the nine justices one morning last month, they were really trying to sway only two of the judges. In dissenting from the decision not to hear a juvenile death penalty case in 2002, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer wrote, “The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency.”
On the other hand, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented from the Atkins decision to ban the execution of the mentally retarded and have indicated they don’t support such a ban on juveniles. That leaves Kennedy and O’Connor as the swing votes.
What’s a Consensus?
Of the 38 states that have the death penalty, as many as 19 bar the execution of anyone under 18 at the time of the offense. So do the federal capital sentencing statute, the U.S. military and almost every country in the world. “What’s notable is how robust this consensus is,” Waxman told the court.
What appeared most relevant to the justices was the change since the court upheld the juvenile death penalty in 1989: Back then, only 11 death penalty states banned the punishment for juveniles. Foes of the juvenile death penalty say eight more states have since joined that ban. Missouri says the figure is closer to four. (The difference lies in part in interpreting the effects of court rulings in several states.)
The change was more drastic in the Atkins case on executing the mentally retarded, partly because the starting number was lower. The number of states that banned that practice went from two in 1989 to at least 17 in 2002.
During the Simmons hearing, Breyer argued that there is essentially a de facto ban on juvenile executions in almost all states. He noted that in the past 10 years, only Texas, Virginia and Oklahoma have executed anyone for crimes committed before age 18. Since the Supreme Court allowed executions to resume in the United States in 1976, only seven states have executed juveniles. Thirteen of those 22 executions were carried out by Texas.
Arguing for Missouri, Layton said the recent statistics are too new to be used as evidence of a long and permanent decline. In a few years, he said, the numbers could go up. Alabama, for instance, has 14 people on death row for crimes committed when they were under 18, according to the Death Penalty Information Center.
He also argued that the rarity of the penalty’s imposition shows that juries take into account mitigating factors such as an offender’s age, making it unnecessary for the court to interfere with states that want to retain the penalty.
The issue of whether world opinion should influence U.S. policy made the court argument sound something like a presidential debate. Among those submitting briefs in support of a juvenile death penalty ban were the European Union and the Human Rights Committee of the Bar of England and Wales.
“Should we yield to the views of the rest of the world?” Scalia asked rhetorically.
Breyer said he doubted “the founding fathers would have thought the rest of the world was irrelevant” in deciding on the nation’s fundamental principles.
In recent years, brain research has confirmed what every parent and youth worker knows: Teenagers are wired differently than adults.
The studies cited by juvenile death penalty opponents focus on the development of the frontal lobes, which govern functions such as impulse control, regulation of emotions and moral reasoning. Those areas are among the last to develop, the studies say, and that development isn’t complete until a person is in his 20s.
Death penalty opponents say this explains why teenagers routinely act impulsively and without sufficient consideration of long-term consequences. The American Medical Association and the American Psychological Association filed briefs supporting the death penalty ban.
Several justices appeared uneasy with accepting what is presented as the latest scientific findings, noting that such findings often change. Kennedy, Scalia and Rehnquist expressed frustration that the evidence was not presented at the penalty phase of the trial, where it could have been subject to fact-checking and cross-examination of witnesses.
Layton, the Missouri solicitor, repeatedly criticized the “arbitrary distinction of age” as a clear dividing line to determine when someone is an adult, either developmentally or legally. “There are 17-year-olds as culpable as 20-year-olds,” he said.
O’Connor, usually an active participant in court arguments, spoke only once during this one: She noted that the number of states banning juvenile executions is similar to the number that banned the execution of the mentally retarded at the time of the Atkins decision.
As for Kennedy, he said to Layton, “World opinion is against this. Does that have a bearing on whether it’s unusual?” It seemed to be a genuine question, indicating that the justice himself didn’t know which way he was leaning.