High Court Weighs End to Juvenile Executions

The Supreme Court struggled Wednesday over whether the time had come to end the death penalty for young murderers. Now that Iran and Congo say they have repudiated the practice, the United States stands alone in the world in sanctioning the execution of minors.

Two years ago, the court abolished capital punishment for the mentally retarded, saying that a “national consensus” had emerged that executing such persons amounted to cruel and unusual punishment. The court noted in its 6-3 decision that all but a handful of states had exempted mentally retarded persons from the death penalty.

On Wednesday, the justices debated whether a similar national consensus existed for limiting capital punishment to killers who were 18 years or older when they committed their crimes.

Despite the lopsided vote of two years ago, it was not clear from Wednesday’s argument that a majority would exempt youthful killers.

Justice Anthony M. Kennedy said he was worried that teenage criminals would be emboldened if they were free from the full force of criminal law. “Juveniles run in gangs,” he said, reasoning that gang members would dodge the death penalty by recruiting their youngest members as “the hit man.”

“I’m very concerned about that,” said Kennedy, who voted in the majority to stop the death penalty for mentally retarded individuals.

Justice Sandra Day O’Connor, the court’s other swing vote, noted that several states in recent years had raised the minimum age to 18 for imposing the death penalty.

“It’s about the same consensus that existed on mental retardation,” she said.

Most states either have no death penalty law or, like California, set 18 as the minimum age. Still, 19 states permit prosecutors to seek a death sentence for killers who are 16 or 17, although fewer have done so of late.

In 1999, 14 underage murderers received death sentences, but the number has declined steadily. Two teenage killers received death sentences last year, and one such sentence has been handed down this year.

The clear leader remains Texas. As of June 30, 72 people who were 16 or 17 at the time of their crimes sat on death rows around the nation, and 28 of them were in Texas.

Since 1976, when the Supreme Court reinstated the death penalty, 22 people under the age of 18 have been executed.

The case before the court Wednesday came from Missouri. It concerned Christopher Simmons, who in 1993 abducted a woman, bound her in duct tape and threw her alive into a river from a railroad bridge. He was 17 at the time, and had bragged to a friend that he would get off because of his age.

Instead, a jury near St. Louis convicted him and sentenced him to die. The Missouri Supreme Court voided the death sentence and ordered him to spend life in prison, and the state attorney general filed an appeal.

James Layton, a Missouri state attorney, urged the justices to let juries weigh each case and decide for themselves when a murderer deserved death.

If the age for capital punishment needed to be changed, it should be done by elected lawmakers, not judges, Layton said.

“Age is a legislative question. It is the kind of fact a legislature should decide, not this court,” he argued.

Seth Waxman, the former U.S. solicitor general in the Clinton administration, argued for Simmons and urged the high court to set a constitutional rule that limited capital punishment to those who were legally adults.

In law, “18 is the bright line between childhood and adulthood,” Waxman said. Since young people need to be age 18 to vote, to join the military, to gamble, or even to marry without their parents’ consent, it is reasonable to set 18 as the minimum age for capital punishment, he said.

The U.N. Commission on Human Rights said six nations beside the U.S. executed juvenile offenders during the 1990s. They are Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen. But its report said all of the countries had repudiated the practice in the last five years.

But the justices remain wary of relying on world opinion in deciding what the U.S. Constitution requires. And they are generally reluctant to overturn established state laws.

A long list of other groups, including the American Medical Assn., the American Psychological Assn., the U.S. Conference of Catholic Bishops, the European Union and Nobel Prize laureates led by former President Carter, filed briefs urging the court to halt the execution of young offenders.

Four justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- have said in the past that they believed such executions were a “shameful practice” and should be abolished.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas have said the court should leave the issue to the states.

“If all this is so clear [that executing juveniles is repugnant], why can’t the legislature take it into account?” Scalia asked.

The justices will meet behind closed doors later this week to vote on the case of Roper vs. Simmons. A ruling is expected in several months.