Justices Weigh Death Sentences for Teens

WASHINGTON — The Supreme Court struggled today over whether the time has come to end the death penalty for young murderers.

Two years ago, the court in a 6-3 decision struck down capital punishment for the mentally retarded, saying that a “national consensus” had formed that executing such people amounted to cruel and unusual punishment.

The justices debated today whether a similar national consensus calls for limiting capital punishment to murderers who were age 18 or older when they committed their crimes.

Despite the lopsided vote of two years ago, it was not clear from today’s argument that a majority would decide that they must exempt youthful killers from the full force of the law.

“Juveniles run in gangs,” Justice Anthony M. Kennedy said. If they are told that those who are under age 18 may not get the death penalty, the younger members of the gang may act as “the hit man,” he said.

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

But Justice Sandra Day O’Connor, the other swing vote, noted that several states in recent years have raised the minimum age to 18 for imposing the death penalty. “It’s about the same consensus that existed on mental retardation,” she commented in a hopeful sign for the foes of capital punishment.

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 murderers who are 16 or 17, although fewer have been doing so of late. In 1999, 14 underage murderers received death sentences, but the number has declined steadily to two last year and one so far this year.

The clear leader remains Texas. As of June 30, 72 people who are 16 or 17 sat on death rows around the nation; 31 of them were in Texas.

The case before the court today came from Missouri. It concerned Christopher Simmons, who in 1993 abducted a woman in his neighborhood, tied her up and threw her into a river from a railroad bridge. He was 17 and bragged to a friend that he would get off because of his age.

Instead, a jury outside St. Louis convicted him and sentenced him to die.

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

If the age for capital punishment needs to be changed, it should be done by elected lawmakers, not judges, he said. “Age is a legislative question. It is the kind of fact a legislature should decide, not this court,” he argued.

But Seth Waxman, the U.S. solicitor general in the Clinton administration, urged the high court to set a constitutional rule that limits capital punishment to those who are legally adults.

In law, “18 is the bright line between childhood and adulthood,” he 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.

“We are literally alone in the world” in permitting the executions of those who committed crimes as juveniles, Waxman said. In the last five years, only the Congo, Iran and the United States have carried out such executions, and Congo and Iran have since repudiated the practice, the court was told.

Four justices — John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — have said they believe such executions are a “shameful practice” and should be abolished.

If O’Connor or Kennedy agrees with them, they will have a majority. The answer will come in several months when the court rules in the case of Roper vs. Simmons.